1710822 (Refugee)

1710822 (Refugee) [2019] AATA 6538 (16 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710822
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Paul Windsor
DATE:16 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 August 2019 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Vietnam – child born out of wedlock – single mother – threat of discrimination and persecution – did not attend hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 424A, 441A(5), 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 May 2017 to refuse to grant the applicants, [Applicant 1] and her daughter, [Applicant 2], protection visas under s.65 of the Migration Act 1958 (the Act).
[Applicant 1] and [Applicant 2], who claim to be citizens of Vietnam, applied for the visas on 25 June 2015.
In the protection visa application [Applicant 1] indicated that she was born and lived in Hue (in central Vietnam). She claimed that she came to Australia on holiday [in] March 2010 and conceived a child (her daughter [Applicant 2]) through a brief relationship. She now fears returning to Vietnam because she fears the community will look down on her due to her having a child who was born out of wedlock.[1]
[1] See folio 41 of the Departmental file.
The delegate, while acknowledging that country information indicates that single mothers in Vietnam may be stigmatised by the community and suffer various levels of social discrimination, found that that this would not meet the threshold of persecution. The delegate was satisfied that [Applicant 1] would be able to access various government and non-government support services available to single mothers in Vietnam, would not be at risk of harm from the community in her area, would be able to subsist, and that state protection would not be withheld from her if she were to require it.
[Applicant 1] applied to the Tribunal for review of this decision on 22 May 2017. She provided the Tribunal with a copy of the delegate’s decision record.[2]
[2] See folios 12-23 of the Tribunal file.
Following receipt of advice from the Tribunal sent on 3 July 2017 advising that the case was being prepared for allocation to a Tribunal member, the representative advised the Tribunal on 12 July 2018 that they no longer act for [Applicant 1] and [Applicant 2].
On 17 July 2019 the Tribunal wrote to the applicants’ authorised representative advising that the Tribunal is required by law to continue to send correspondence to them, as the authorised recipient, unless and until the applicants advise otherwise. A letter was attached requesting that the applicants confirm that the representative is no longer to receive correspondence in connection with the review. A copy of this letter was also sent to the applicants by post to the last known mail address provided for them (which was in the review application form).[3]
[3] See folios 30-33 of the Tribunal file
On 23 July 2019, the Tribunal wrote to the applicants (via their representative) advising that the Tribunal had considered all the material before it relating to their application but was unable to make a favourable decision on that information alone. The applicants were invited to appear before the Tribunal to give evidence and present arguments at a hearing at 9:30 am on 16 August 2019. The letter advised the applicants that if they did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before the Tribunal. A copy of this letter was also sent to the applicants by post to the last known mail address provided by them.[4]
[4] See folios 35-47 of the Tribunal file.
On 8 August 2019 the letter sent by post directly to the applicants, to the last known mail address provided by them, was returned to the Tribunal marked ‘RTS NOT AT THIS ADDRESS’.[5] The Tribunal attempted to contact the applicants via the mobile phone contact number provided in the review application but the phone appeared to have been disconnected. Noting that a different mobile phone number was included in Departmental records for [Applicant 1], the Tribunal attempted to call her on this number. The call was not answered but a message was left asking her to call back urgently and to provide updated address or email details. No response was received. A further message was left on 9 August 2019 using a Vietnamese interpreter.
[5] See folios 48-58 of the Tribunal file.
[Applicant 1] was also sent SMS reminder messages regarding the hearing on 9 and 15 August 2019 to the mobile phone number provided in her review application. ‘Delivery failed’ responses were received in relation to these SMS messages.
No response to the rescheduled hearing invitation letter was received from the applicants and they did not attend the hearing scheduled for 9:30 am on 16 August 2019. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.441A(5), that the hearing invitation was received by their authorised representative, and that reasonable attempts were made to contact the applicants in light of their apparent failure to remain in contact with their authorised representative and failure to update the Tribunal regarding the status of their authorised representative and their contact details. In these circumstances, and pursuant to s.426A of the Act, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims from the protection visa application
The claims from the protection visa application are summarised as follows:[6]
·[Applicant 1] came to Australia on holiday [in] March 2010. As a result of a brief relationship with a guy she met at a party she has a child, [Applicant 2], born on [date]. When the father found out she was pregnant he left her and she has been unable to contact him.
·She met her current husband in March/April 2014 and conceived another child with him.
·She is afraid of returning to Vietnam for fear that the community there will look down on her for having a child out of wedlock. The Vietnamese community does not acknowledge women who have children out of wedlock. Most people look down on them and do not embrace them into society. She fears she will be screamed at and told to go back where she came from and not bring disrepute to the community. She will be forced to leave the neighbourhood. She will not be accepted in community centres like shops, playgrounds and schools and will be yelled at and spat upon. She cannot bear to see her daughter live through these tortures. Because of her changed status she is very sure she will experience discrimination and threats of violence.
·Her parents and immediate family have disowned her and told her not to return as she is not welcome.
·Discrimination and persecution in her case is subtle and the police may not be able to protect her. Knowing the police they will probably tell her it is her fault.
·As a single mother she would be persecuted wherever she went in Vietnam.
[6] See folio 41 of the Departmental file.
A copy of a certificate of marriage was provided indicating that [Applicant 1] married [Mr A] in Australia [in] April 2015. A copy was also provided of the biographical details page of [Mr A’s] Australian passport.[7]
[7] See folios 48 and 50 of the Departmental file.
Findings and reasons
Identity
On the basis of the copy of [Applicant 1’s] Vietnamese passport provided to the Department and the copy of [Applicant 2’s] birth certificate provided to the Department (which does not include details of the father), and noting the delegate’s findings in this regard, the Tribunal accepts that the applicants are citizens of Vietnam and that their identities are as claimed. The Tribunal accepts that Vietnam is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.[8]
[8] See folios 49 and 51-52 of the Departmental file.
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s,5J91) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Vietnam, there is a real risk the applicants will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Fear of harm in Vietnam due to her status as a single mother
While [Applicant 1] states that she is a single mother the Tribunal notes that that she married an Australian citizen, [Mr A], in April 2015 and had conceived a second child with this man. The Tribunal also notes that Departmental records indicate that [Applicant 1] sought to lodge a combined Class UK Partner (Temporary) (subclass 820)/Class BS Partner (residence) (subclass 801) visa on 14 May 2015 but this application was found to be invalid because the visa she used to enter Australia was subject to condition 8503 ‘No Further Stay’ which limits further applications while the person remains in Australia to certain classes of visas (not including partner visas). [Applicant 1] subsequently sought waiver of the applicable condition 8503 but this was refused on 11 June 2015.[9] The Tribunal notes that [Applicant 1] made the protection visa application on 25 June 2015, two weeks after she was notified of the decision not to waive the applicable condition 8503.
[9] See folios 42-47 of the departmental file.
Due to the lack of further advice regarding [Applicant 1’s] circumstances since this time the Tribunal does not know whether [Applicant 1] remains in a relationship with [Mr A] and whether he might accompany her if she returned to Vietnam or whether he would provide support to her if she and [Applicant 2] returned to Vietnam, possibly pending the lodgement and processing of a valid partner visa application offshore. [Applicant 1] also indicated in the application that she has been disowned by her parents and immediate family and has no contact with them. While it is possible that she has reconciled with her parents and family following her marriage in April 2015 the Tribunal also has no information regarding this. Accordingly, the Tribunal has proceeded with this assessment on the basis that [Applicant 1] has not reconciled with her parents/immediate family and may no longer be in a relationship with [Mr A] and, therefore, that she would be returning to Vietnam as a single mother.
The Tribunal accepts that single mothers are a particular social group in Vietnam for the purpose of s.5J(1)(a) of the Act. In considering [Applicant 1’s] circumstances the Tribunal has had regard to relevant country information as detailed below regarding the situation for single mothers in Vietnam.
According to a report from the Kyodo News Service in Japan, single motherhood was legalised in Vietnam in June 2000 by means of an amendment to the country’s Marriage and Family Law. It was reported that: “The amendments make the children of single mothers equal to those born to married parents.”[10]
[10] The Free Library 2000ingl motherhood legalized in Vietnam”, 9 June, Single+motherhood+legalized+in%20+Vietnam.-a062708837
An article by Vietnam Culture notes that in Vietnam ‘traditional family values were accomplished by the fulfilment of traditional roles: the role of man and woman as parents.’[11] The same article reports that: ‘pregnancy out of wedlock is uncommon, and it is a grave disgrace to the family’.[12]
[11]‘Vietnamese Traditional Family Values’, Vietnam Culture, 2017, CISEDB50AD225, para.4, p.1
[12] Ibid, para.5, p.1
International Social Service (ISS) reported in 2015 that the family ‘is considered the fundamental unit of society’ and is of ‘cultural importance’.[13] They also reported that single and unmarried women risk ‘abandonment or relinquishment’.[14]
[13]‘Qualitative research into the root causes of child abandonment and child relinquishment in Viet Nam’, International Social Service, 2015, CISEC96CF15036, para.4, p.10
[14] Ibid, para.1, p.86
The same report by ISS indicates that stigmatization is most apparent with ‘never married mothers’ but that societal perceptions were changing in the younger generation and ‘despite changing ideas on single mothers’ the ‘‘happy’ family norm is still very dominant’.[15]
[15] Ibid,para.5, p.78
The same report also states that stigma still exists but notes that the ‘meaning of single motherhood is rapidly changing in Viet Nam and [is] not seen any more as a very transgressive event’.[16]
[16] Ibid, para.1, p.64
The 2011 United Nations CEDAW report for Vietnam indicates that while a gender bias persists and the status and circumstances of women remain of concern, particularly in rural and remote areas and among the poor, the status of women within the family and in the wider society has improved, including their ability to access basic health and educational services, to be dealt with justly by the police and judiciary and to engage with government.[17] The same report details a campaign to support poor women, single women and women with disabilities through the provision of accommodation throughout the country and the establishment of a Centre for Women and Development which undertakes activities to support marginalised or vulnerable women, providing life skills and assisting integration into the community.
[17] United Nations Committee on the Elimination of Discrimination against Women 2014, Consideration of reports submitted by States parties under article 18 of the Convention, seventh and eighth period reports of States parties due in 2011: Viet Nam, 13 December
A 2017 article in The Straits Times of Singapore titled ‘Vietnam's working women opting to stay single’ stated:
‘In its 2015 report on social inequality, the international development organisation Oxfam assessed that Vietnam was one of the countries with the highest female participation in the labour force across South-east Asia.
Vietnam has been cited by the World Bank for being able to close gender gaps in education, access to healthcare, and many aspects of employment since the early 1990s.
Last year, 72.2 per cent of Vietnamese working-age women were in the labour force compared to 81.7 per cent of men, the General Statistics Office said.
Ms Nguyen Thi Dieu Hong, a former gender specialist at the United Nations Development Programme, said the number of single mothers has also been increasing in Hanoi, Ho Chi Minh City and Danang City.
"The majority of them are highly educated and can earn a good living so they can finance themselves and their babies," she said.[18]
[18] ‘Vietnam's working women opting to stay single’, The Straits Times, 29 April 2017,
A 2017 article published by the Xinhua News agency titled ‘Single women enjoying independent lives on the rise in Vietnam’s cities’ noted that the ‘right to motherhood of single women had been officially recognised by the Vietnamese government since 2003, by allowing them to receive sperm donations and have a baby through In virto fertilization’. The article also noted that ‘In 2006 and 2007 respectively, a gender equality law and anti-domestic violence law were ratified by the country's National Assembly, making Vietnam one in only a handful of countries in the world with both laws in place’.[19]
[19] ‘Single women enjoying independent lives on the rise in Vietnam's cities’, Xinhua News, 28 April 2017, type="1">
In a 2018 Country Information and Policy Note on Victims of trafficking in Vietnam, the United Kingdom Home Office (UKHO), in a section titled ‘Women living alone’ noted that in February 2013, the New York Times reported on a group of women who decided to have children without husbands in Loi following the ‘American war’.[20] The source noted:
‘Outside of Loi, many women across Vietnam had made the same decision. The growing number of single mothers, especially those who had fought for the revolution, at length caught the attention of the Women’s Union, the government agency that oversees programs for women.
‘“Many women gave everything in the war, and it was important to recognize their sacrifice,” said Tran Thi Ngoi, head of the Women’s Union in the Soc Son district of Hanoi.
‘Although the plight of the war generation single mothers was only one factor, in 1986 the government passed the Marriage and Family Law, which for the first time recognized single mothers and their children as legally legitimate. It was a victory for the mothers in Loi, and for others like them.
‘“Every woman has the right to be a wife and a mother, and if she cannot find a husband, she should still have the right to her own child,” Ms. Ngoi said.
‘Since then, the government, working with international organizations, has continued to push for equal rights for women and to improve their health and education. Today single mothers in the countryside still face hardship, discrimination and shame, but benefit from government initiatives that started with the older generation.’
[20] United Kingdom Home Office, Country Policy and Information Note, Vietnam: Victims of trafficking, September 2018.
The UKHO report also cited an article published by Tuoi Tre News in September 2014 which reported:
‘As more women in Vietnam become single mothers for different reasons, several groups have been launched online to help them overcome financial difficulties, provide them with access to better child care, and stand firm against social stigmas. One such group in Ho Chi Minh City is “Hoi Nhung Ba Me Nuoi Con bang Doi Tay va Nuoc Mat” (Association of Single Mothers Raising Their Children with their Hands and Tears). Membership to the group is exclusive to single mothers only. According to its management, the group now has almost 2,000 members. Many members from other provinces also take part in the occasional offline meetings. Several other online groups, exclusive or not, also gather single mothers together.’
An unofficial English translation by the International Labour Organization of Decree No.67/2007/ND-CP Policies for Social Protection Beneficiaries under Article 4, Clause 9 in Vietnam states that:[21]
Single persons under the poor household category who are raising child(ren) under 16 years of age; if their child(ren) is (are) following general education or vocational training, they are entitled to the allowance until their child(ren) reach(es) 18 years of age.
[21] International Labour Organization 2007, Decree No. 67/2007/ND-CP or 13 April 2007 on Support Policies for Social Protection Beneficiaries (unofficial English translation), 13 April, p.2 >
The same decree states that the minimum monthly social allowance is VND 120,000 which may change if minimum living standards change. Additionally, if the single mother’s child(ren) is under 18 months then the allowance increases to VDN 240 000.
Furthermore, Article 10 of the decree states that single mothers are entitled to the following support:
“1. Persons who are following general education or vocational training are entitled to exemption or reduction of school fees and free textbooks, notebooks and learning equipment according to law.
2. An allowance of VND 2,000,000 per person as support for burial costs when they die.
3. Apart from the supports specified in Clauses 1 and 2 of this Article, persons living in state-run social protection establishments are entitled to:
a/ An allowance to buy personal articles in service of daily life;
b/ An allowance to buy ordinary medicines; HIV/AIDS-infected persons are entitled to an allowance of VND 150,000 each per year to support opportunistic infection treatment;
c/ A monthly personal hygiene allowance for women of reproductive age.”
Having considered the relevant country information and the applicants’ individual circumstances the Tribunal accepts that that single mothers and their children may face a degree of ostracism and discrimination in Vietnam. Considering the information regarding relevant legal provisions, available financial support and support services and indicating changing community attitudes, particularly outside of rural areas, the Tribunal does not accept that the level of discrimination the applicants might face would amount to serious or significant harm as defined in the Act. Country information indicates that single mothers and their children are legally legitimate under Vietnamese law. Although they may still face societal and family disapproval and some economic hardship, particularly in rural areas, there is nothing to indicate or suggest that single mothers and their children suffer significant physical harassment or significant physical mistreatment; are refused assistance by police or other authorities if required, or are denied access to basic services or the capacity to earn a livelihood of any kind, where this would threaten their capacity to subsist. For these reasons the Tribunal does not accept that the applicants would suffer significant economic hardship that threatens their capacity to subsist should they return to Vietnam.
Given the relevant country information, the Tribunal finds that the neither [Applicant 1] nor [Applicant 2] faces a real chance of suffering persecution involving serious harm from members of the Vietnamese community or from Vietnamese authorities upon their return to Vietnam for reasons of [Applicant 1] being a single mother and/or a woman without family support, or [Applicant 2] being the child of a single mother without extended family support. The Tribunal finds the applicants’ fears of persecution are not well founded.
Accordingly, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that neither of the applicants meets the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In this regard the Tribunal has considered whether there is a real risk either [Applicant 1] or [Applicant 2] will suffer significant harm, as a necessary and foreseeable consequence of their being removed from Australia to Vietnam.
In considering whether there is a real risk that either of the applicants will suffer significant harm in these circumstances, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[22]
[22] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Having regard to its findings of fact set out above, the Tribunal finds that there is not a real risk that either [Applicant 1] or [Applicant 2] would suffer significant harm as defined at s.36(2A)(a)-(e) of the Act. That is, the Tribunal does not accept that there is a real risk that either of the applicants will be arbitrarily deprived of their life; and/or will have the death penalty carried out on them; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, from members of the Vietnamese community, the Vietnamese authorities, or anyone else, as a necessary and foreseeable consequence of either of them being removed from Australia to Vietnam. Accordingly, the Tribunal is not satisfied that either [Applicant 1] or her daughter [Applicant 2] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either [Applicant 1] or [Applicant 2] 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, neither [Applicant 2] or [Applicant 2] satisfies the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Windsor
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.
…

[2019] AATA 6538

16 August 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies