1705180 (Refugee)

[2017] AATA 3103

1705180 (Refugee) [2017] AATA 3103 (27 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705180

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:David Corrigan

DATE:27 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 June 2017 at 4:26pm

CATCHWORDS

Refugee – Protection visa – Vietnam – Religion – Ching Hai follower, Buddhist and Catholic – Not harmed for religious beliefs – Land claims – Squatters taken over land – Required to pay land tax notices – Imputed political opinion – Family’s dispute with government officials – Involved in anti-Vietnamese government political activities in Australia – Minor involvement with Vietnamese community affairs – Australian criminal record – Inconsistent evidence – Failed asylum seeker claim – No real chance of persecution

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499

Migration Regulations 1994

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 2 December 2016.  

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s claims can be summarised as follows.  He was born in Vietnam in [year].  As set out in the delegate’s decision (a copy of which was submitted to the Tribunal) he first arrived in Australia on 23 October 2013 on a [temporary] visa.  He departed Australia on 26 May 2014 and returned on 18 June 2014.  He again departed Australia on 16 September 2014 before returning on 20 September 2014.

10. The applicant is a Buddhist who follows Master Supreme Thich Thanh Hai and worships Avalokitesvara Bodhisattva which means going against the regime because it encourages people to become vegetarian and keep five precepts.  In Vietnam they did not have enough food to eat so encouraging people to become vegetarian means going against the regime.  At the interview with the delegate, the applicant claimed that he believed in Jesus and attended a Catholic Church in [Australia].

11. The applicant is the son of a Communist Party member who quit the part to do business to stop the family from starving.  The applicant rented many properties.  If he did not pay the government he would be in put in prison.  He had properties from the government but some people who went to prison stole them.  He paid the government in order to get them back but he police could not help him.  Neither the people who stole the properties or him could pay the government property fees.  The applicant fears that the persons who stole his properties will harm him and his family. 

12. The applicant had a photo of himself with many top leaders in Vietnam and that if his visa is cancelled it would affect their reputation and might harm them.  He also claims that some people who committed crimes overseas disappeared when they returned to Vietnam.

    Country of reference

13. The applicant has claimed to be a citizen of Vietnam.  He has submitted documentation (a copy of his passport) that supports this and I find that he is a national of Vietnam and that this is his receiving country.

    Assessment of claims

    Religious claims

14. In his protection visa application, the applicant stated he was a Buddhist and at his interview with the Department he stated he went to a Catholic church in [Australia].  At the hearing, he also claimed that he was a follower of Master Ching Hai and he was a vegetarian and worked at a Loving Hut restaurant in [Australian city 1].  The applicant said he feared being arrested in Vietnam because of these religious beliefs. I accept that the applicant is a Buddhist, a Catholic and a follower of Master Ching Hai and that he has worked at the Loving Hut restaurant in [City 1].  The applicant submitted letters of supports indicating that he had worked at the restaurant.  However, I consider the chance or risk that he will be seriously harmed or significantly harmed upon his return to Vietnam due to any of this is remote.

15. The Australian Department of Foreign Affairs and Trade (DFAT) have commented:

    3.8 The treatment of religious groups varies widely across different areas of the country and is further dependent upon their relationship with the Government. The CPV maintains a strong atheistic stance against religion; however, Vietnam is traditionally a Buddhist country, with more than half of the current population (majority Kinh ethnicity) considering themselves to be adherents of Mahayana Buddhism. According to the US Department of State’s 2016 report on religious freedom, the Government continued to monitor the activities of some religious groups, mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism. Local authorities regularly blocked religious gatherings and temporarily detained members of some unregistered groups, especially in ethnic minority regions. DFAT is also aware of credible reports of local authorities either delaying or denying applications for approval and recognition of religious groups with no reason provided.

    3.9 Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.

    3.10 DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.[1]

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017.

16. I have considered the masses of country information reports submitted by the applicant about the government treatment of religion and religious dissidents in Vietnam.  The only report that the Tribunal has been able to identity from these or its own research concerning targeting of followers of Ching Hai related to events that are now a long time ago.  The United Kingdom Home Office reported in that publications of Ching Hai were seized and 17 members were arrested on 7 November 2000 by the Vietnamese authorities and that 10 members had previously been arrested in mid-1998.[2]  The Tribunal has searched an extensive array of sources but none indicate any further mistreatment of followers of Ching Hai.[3]  Furthermore, it is apparent from the Loving Hut website that several Loving Hut restaurants are openly operating in Vietnam.[4]  At the hearing the applicant commented that these were not linked to Ching Hai and the owners were just using the name, however the Loving Hut website is linked on the Supreme Ching Hai International Association’s website God’s Direct Contact[5] and I do not consider this to be the case. Whilst the applicant claimed that Ching Hai was perceived as being pro-American, her ability to operate a chain a restaurants in Vietnam strongly indicates that her followers are not targeted in that country.

    [2] United Kingdom Home Office, Vietnam Country Report, October 2013,

    [3] These include Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 August 2017, US State Department reports on International Religious Freedom – Vietnam and UK Home Office reports.

    [4] Loving Hut Vietnam- Vegan & Vegetarian Fast Food Restaurant, God’s Direct Contact,

17. The applicant has not claimed that when he was in Vietnam that he was ever harmed or prevented from practising his religious beliefs (whether they be Ching Hai, Buddhist, Catholic or being a vegetarian).  I am of the view that the applicant can and will return to Vietnam and practise his religious beliefs in a manner that will not challenge the Vietnamese authorities.  He is not of any adverse interest to the Vietnamese authorities and I consider it remote that he will be upon his return.

18. Considering the applicant’s individual circumstances and the country information as a whole, I find that he does not face a real chance of persecution now and in the reasonably foreseeable future for reasons of religion.   

19. Considering the applicant’s individual circumstances and the country information as a whole, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm on this basis.

    Land claims

20. I accept that the applicant’s father obtained land and that the applicant did as well. The applicant has submitted supporting documentary evidence of his involvement in a company and land ownership (or rental) with a commune. I accept that squatters have taken over this land and have prevented the applicant from removing them. I accept that the authorities have not assisted him and have issued him with land tax notices. However, I do not consider this past treatment (or any future treatment) amounts to either serious harm or significant harm. The applicant’s evidence to the Tribunal was that he was not physically harmed by these squatters when he went to these properties though they chased him. I consider it reasonable that the applicant modify his conduct by not returning to the land and confronting the squatters and that this would not be inconsistent with s.5J(3) of the Act. The applicant expressed a fear of being jailed because he could not pay his taxes; however his evidence was that he had not been charged with any offences and I note that the authorities could take back the land (but haven’t done so) to reclaim back taxes and I consider in all the circumstances that the chance or risk that he will be charged with tax offences and jailed or seriously harmed or significantly harmed as a result is remote.

21. Considering the applicant’s individual circumstances, I find that he does not face a real chance of persecution now at the hands of the squatters or the state and in the reasonably foreseeable future on this basis.   

22. Considering the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm on this basis.

    Grandfather and father

23. The applicant told the Tribunal that his grandfather’s land was taken from him by the Communists and that his grandfather was jailed and his grandmother, aunts and uncles had to flee.  However, he also told the Tribunal that this treatment of his grandfather occurred back in the 1940s.  I consider that these events are so long ago and they are in no way indicative of a real chance or real risk of serious harm or significant harm to the applicant now or in the reasonably foreseeable future.  I note the applicant was able to obtain a [university qualification] and work as a [professional] which also indicates that he was not and would not be of adverse interest upon his return because of his family background.

24. The applicant claimed that his father had been a member of the Communist Party but resigned for economic reasons.  In his earlier claims, he stated that his father had been secretly poisoned; however at the hearing when I asked him how his father had died he said his father was angry and he died of a disease caused by an argument with the government.  The applicant did not state his father had been poisoned.  When I put to him this inconsistency, he claimed that his father had been poisoned.  However, I do not accept that he could not consistently recall the cause of his father’s death and whilst I accept that his father died in 2014, I consider the claim that he was slowly poisoned to be far-fetched and implausible and I do not accept that his father was poisoned or the victim of foul play by any actor.  Whilst I accept that his father had disputes with government officials and the police and had to pay them bribes and that his business operations stopped, I note that the father died in 2014 and I do not accept that the applicant facing serious harm or significant harm upon his return as a result to be anything more than remote.  At the hearing, the applicant claimed that his father told him about matters related to national security.  When I asked him to expand he said his father told him where they kept the weapons.  Noting that the applicant has not claimed he has been harmed or targeted in the past on this basis, I consider the applicant’s claims in this respect to be far-fetched, implausible and vague and do not accept them.

25. Based on his individual circumstances, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Vietnam due to his membership of a particular social group (his family) or any imputed political opinion. 

26. Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.

    Political opinion claims

27. The applicant has claimed that he is an opponent of the Vietnamese government.  In support of that claim and that he will be harmed upon his return, he has presented photographic evidence of himself with some elderly Vietnamese men in [City 1] who he says are South Vietnamese veterans and a photo of himself with others at [a] Business Association event.  [Sentence deleted].  He said he attended events 2-3 times every year for four years and that he was an assistant to the Chairman of [a Vietnamese organisation] which he said was within the Business Association.  I have considered all of the applicant’s documentary and oral evidence; however I do not accept that he has been involved in anti-Vietnamese government political activities in Australia.   The evidence he has submitted relates far more to minor involvement in Vietnamese community and business activities rather than the expression of anti-government opinion.  Whilst I accept that there are former South Vietnamese veterans who attend these events and meetings, I do not accept that this or any assistance he has given to them has created any anti-government profile for him in Vietnam.  In making this finding, I note that the war in Vietnam ended over 40 years ago and available country information does not indicate that persons in Vietnam are now targeted or harmed for their past involvement with the South Vietnamese government or military.[6]  I do not accept that upon return to Vietnam the applicant will or will wish to take part in any anti-government political activities and I do not accept that he is or will be of any adverse interest to the Vietnamese authorities upon his return.  In making this finding, I accept that the applicant has had a telephone conversation with a Vietnamese investor encouraging him to invest in Australia, however noting the rise of economic reforms (or Doi Moi)[7] and the lack of reports of targeting of persons involved in such conduct I do not accept that this will lead to him being imputed with any anti-government political opinion.

    [6] For example, Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017 and United Kingdom Home Office, Vietnam Country Report, October 2013 do not refer to this.

    [7] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017

1. The applicant has submitted photos of himself with a Vietnamese [officials] in Vietnam and claimed that he had protested against the Chinese government and confronted corruption.  Whilst I accept that he had photos taken with these individuals, his evidence as to his participation in political activities in Vietnam was extremely vague, undetailed, confusing and fanciful and I do not accept that he was involved in any political activities against the Chinese or Vietnamese governments.  I note that he was never harmed or targeted when he was in Vietnam and returned there on a couple of occasions without problems.  Whilst he claimed that he lost his [job], I note that he did not return to his position and that therefore it was not unusual that this would occur. 

2. Given the totality of the country information and his individual circumstances, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Vietnam on account of an actual or imputed political opinion.

3. Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.

   Criminal record in Australia claims

4. The applicant has been convicted in Australia for [offences].  DFAT stated in 2004 that it would be highly unlikely that a Vietnamese citizen who has served a jail sentence in Australia for a drug-related offence would be retried or subjected to other punitive action upon their return.[8]  Whilst I have taken into account that the applicant has not been convicted of a drug-related offence, I consider this information supports that the applicant would not face harm as a result of his different type of criminal conviction.  In a 2007 report, DFAT responded to an information request from the Refugee Review Tribunal regarding whether there had been any recent reports of people with Australian criminal records being “harmed, arrested or imprisoned on their return to Vietnam” by advising, “ Not to our knowledge”.[9]  The Tribunal has not identified any later reports of Vietnamese with Australian criminal records being harmed upon their return.   

   [8] Department of Foreign Affairs and Trade 2004, DFAT Report 344: RRT Information Request VNM17108, 23 November.

   [9] Department of Foreign Affairs and Trade 2007, DFAT Report 706: RRT Information Request VNM32395, 8 October.

5. Given the totality of the country information and his individual circumstances, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Vietnam due to his membership of a particular social group consisting of “persons with criminal convictions in Australia returning to Vietnam”. 

6. Based on his individual circumstances and the independent country information as a whole, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.

   Failed asylum seeker claims

7. DFAT have commented that “Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration” is an offence under Article 91 of the Penal Code 1999 but they are unaware of any cases where this provision has been used against failed asylum seekers.  DFAT state that they have no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the government.[10]   Whilst I accept that he has had photos taken with a general and Communist Party officials, I do not accept, on the available evidence that this would lead to him being targeted because of any embarrassment to them due to him being a failed asylum seeker or due to his criminal conviction in Australia.    

   [10] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017.

8. Given the totality of the country information and his individual circumstances, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Vietnam as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or failed asylum seekers returning from a Western country). 

9. Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.

   Cumulative assessment

10. Considering the applicant’s individual circumstances and the country information cumulatively, I find that he does not face a real chance of persecution now and in the reasonably foreseeable future for reasons of religion, nationality, membership of a particular social group, political opinion or race.  His fear of persecution is not well-founded. 

11. Considering the applicant’s individual circumstances and the country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.

    Conclusions

12. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a protection visa.

    David Corrigan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …