1716084 (Refugee)

1716084 (Refugee) [2023] AATA 2368 (10 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sam Issa (LPN: 5511666)
CASE NUMBER:  1716084
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Roslyn Smidt
DATE:10 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 May 2023 at 1:36 PM
CATCHWORDS
REFUGEE – protection visa – Vietnam – member of particular social group – homosexual man – activities and relationships in home country and Australia – threat of psychological treatment by parents and fear of discrimination and harm – credibility – inconsistent and unpersuasive evidence – no current statements or oral evidence from gay friends provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
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 dependants.
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 and Border Protection on 11 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Vietnam, applied for the visa on 19 May 2016. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant’s claims were credible.
The applicant appeared before the Tribunal on 3 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
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 (Cth). 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 themselves 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 the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
background
The applicant is a [Age] year old single man from Vietnam. He first arrived in Australia on a student visa [in] March 2013. He returned to Vietnam in February 2016 and re-entered Australia [in] May 2016. He applied for protection on 6 July 2016.
Claims and evidence
The applicant claims to fear persecution if he returns to Vietnam because he is homosexual.
Evidence provided to the Department
In a statement provided with his initial application in July 2016, the applicant said that he realised he was gay at the age of 16. He had told his family about his sexuality. He claimed that he had been in a secret relationship with [Mr B] for about a year from the age of 17 in Vietnam and that he had been in a relationship with an Australia citizen or permanent resident called [Mr C], who he met while studying, since May 2014, when they began to live together. He said that a close circle of friends in Australia knew about his sexuality. He submitted that homosexuals in Vietnam face discrimination and serious harm, particularly if they serve in the military.
On 28 June 2017 the applicant submitted a statement from his Australian partner, signed on 24 November 2016. He also provided several poor-quality photocopies of photographs which show him with another male in what appear to be public places.
On 30 June 2017 the delegate asked for identity documents for [Mr C]. Later the same day, his then representative advised that he was no longer in a relationship with [Mr C] and was not able to provide his identity documents.
The applicant attended an interview with the delegate on 3 July 2017. According to the delegate’s decision, a copy of which was provided to the Tribunal, [Mr B] was a friend and they had not been in a sexual relationship.
The applicant confirmed that the photographs he had provided showed him and [Mr C]. He said that their relationship had ended in December 2016 when he learned that [Mr C] had been unfaithful.
When asked if he had any connection with the LGBTI community in Australia he said that he had watched the Mardi Gras parade the previous year and had attended some gay clubs in Oxford Street. He said that he had not attempted to obtain any information about LGBTI groups or activities in Australia.
The delegate found the applicant’s evidence regarding his sexuality unpersuasive. She observed that he had failed to provide any verifiable evidence regarding his relationship in Australia and observed that despite having the opportunity to do so, he had not obtained evidence from the circle of friends he claimed were aware of his sexuality. She did not accept that he was gay and therefore did not accept that he was at risk of harm for that reason.
Evidence provided to the Tribunal
On 2 May 2023 the applicant provided a statement prepared with the assistance of his current representative. It states that the claims made in his written and oral submissions to the Department were all true. It also states that he did not tell the delegate that he and [Mr B] were just friends, as suggested in the delegate’s decision. He said that he had told his parents that he was gay in about February 2019. They were shocked and responded with hostility. They told him to return to Vietnam and undergo psychological treatment for what they saw as a mental illness.
The applicant said that he was not currently in a relationship with anyone. He said that he had attended Mardi Gras five times, including in February 2023, and regularly frequented gay friendly clubs in Sydney including [Venue 1], [Venue 2] and [Venue 3] in Darlinghurst. He said that he had a small circle of gay friends with whom he regularly socialised. He said that he feared retuning to Vietnam because he would be compelled to conceal his sexuality or face serious harm.
On 3 March 2023 the applicant was advised that his case was being prepared for constitution and asked to provide information on his availably for hearing. He was also advised to submit any additional information he wanted to provide as soon as possible. On 6 April 2023 he was invited to attend a hearing on 3 May 2023 and advised to provide any new information by 26 April 2023. On 20 April 2023 the Tribunal was advised that the applicant had appointed a new representative. He returned a completed hearing attendance form which indicated that he and his representative would attend the hearing and that [Mr D] would attend as a witness to provide evidence regarding a continuing relationship. On 29 April 2023 the applicant’s representative requested that the hearing be delayed. On 1 May 2023 he was advised that I was not prepared to delay the hearing but would consider any submissions for additional time to provide evidence following the hearing.
At the hearing I noted that the applicant had previously stated that he realised he was attracted to men when he was about 16, in about [year], and asked him to tell me about his life as a young gay man from then until his departure for Australia in 2013. He said that he had been in a gay relationship with [Mr B]. He said that he had told the delegate that [Mr B] was his boyfriend and they used to kiss and hold hands, but they had not had sex.
The applicant said that in addition to [Mr B] he had two gay friends in Vietnam and the three of them did most things together. When asked for their names, he had great difficulty recalling them. After some thought he named another person but said he could not recall the third because it was a long time ago.
The applicant said that he and his friends kept their sexuality secret and nobody knew they were gay. When asked how they had found each other, he said that he could tell they were gay because of their behaviour and attitude, for example, they dressed in a colourful way and spoke differently. In addition, they had gravitated towards men and showed no interest in girls. I asked why other people had not realised that they were gay. He said he did not know whether other people realised that he and his friends were gay, but he tried to hide his sexuality.
I asked the applicant to tell me about his life as a gay man in Australia. He said that after arriving in Australia he saw a lot of young gay men living openly. I asked when he had first met other gay people. He said he first came into contact with other gay men when he went to a music festival at the end of 2014. I asked him for more information about his contact with other gay people during his early years in Australia. He said that he used to eat out, that he went to Mardi Gras and that he had been to gay bars. I asked for more details about his friendships or relationships with other gay people during his early years in Australia. He said that he had just listened to the music and watched the attitudes of others and sometimes shared telephone numbers so he could get closer to people. When pressed for more detail, he said that he had recently met a man called [Mr E] and they went out and were involved in Mardi Gras. I observed that my questions related to his activities when he first arrived in Australia and advised him that I was concerned that his evidence was very general in nature. He said that he had shared a room when he first arrived and his roommates had introduced him to other gay people.
I noted that the delegate’s decision suggested that he had said that he had no connection with the broader gay community when he was interviewed in July 2017. He said that his English was poor and he had been reluctant to communicate with people who were not from Vietnam. He said that during the first few years he was in Australia he had a connection with people from the school he attended, his workplace and his roommate, but later he attended some music festivals and met other gay friends.
I asked the applicant for information about his life as a gay man in Sydney in the period shortly before the COVID-19 pandemic disrupted most people’s lives. He said that he was living a happy life, working, going out, eating out and sometimes attended festivals. I asked him to tell me about his life as a gay man in Sydney after the COVID-19 lockdowns ended. His response was confused. I advised him that I was questioning him about his life because I had some doubts about the claim that he was gay and I wanted to understand his life in Sydney so I could properly assess whether his claims were credible. The applicant said that he was currently very comfortable in Sydney.
I asked the applicant if he had had any romantic or intimate relationships with men in Australia. He said that he had been in two relationships. The first one, with [Mr C], started in 2014, about a year after he arrived in Australia [about May 2014] and lasted for about four years [until about 2018]. I asked if he was still in a relationship with [Mr C] when he was interviewed by the delegate, and he said that he was. I observed that this was at odds with the evidence provided at that time, which stated that the relationship had ended. He said that he and [Mr C] were having problems and he thought the relationship was likely to end, but the relationship was ongoing at that time.
I noted that while the applicant had provided a written statement purported to be from [Mr C], he had not provided documents which confirmed [Mr C]’s identity, which made it difficult for me to put much weight on that document. The applicant responded that he did not have much evidence at the time he provided the statement.
The applicant claimed that he had begun a second relationship with a man called [Mr F] in 2019. They met at work. The relationship lasted a year and ended because they were not compatible. He had not been in a relationship with anyone since that time.
I noted that the applicant had not provided any current evidence from gay friends or arranged for any of his gay friends to appear as a witness at the hearing. He said that they were aware that he was applying for protection and he had asked if they could attend the hearing, but they were busy and could not come. When asked for information about his gay friends, he named two men. I asked for their contact details and advised him that I would like to speak to them during the hearing. He appeared to be reluctant and initially said that he contacted them on Facebook. He provided a telephone number for one friend; the call was not answered.
I noted that the applicant had claimed that he had attended a number of gay Mardi Gras parades. He said that this was correct. He said he had attended the most recent parade with some friends. They followed the group, listened to music, ate out and were involved in some activities. When asked about his involvement in these activities he said that he had not been in the parade or attended any parties or any other activities before or after the event because he was too busy, but he had spoken to other people who were watching the parade.
I noted that the applicant had also claimed that he had visited gay bars and I asked him how often he went in 2022 and 2023. He said that he went to [Venue 1] about once a month and also went to [Venue 2]. I asked him to tell me about [Venue 2]. He said that he had only been to [Venue 2] twice because he preferred [Venue 1]. He initially said that he had only been to [Venue 2] in 2023, but later said that he had not been there for a long time and had last visited in March 2022. I observed that it appeared that the club had been closed for most of 2022 and only reopened in December 2022.[1] The applicant said that he could not recall when he went to [Venue].
[1] [Venue 2] closed due to COVID-19 in 2020 and did not reopen until December [2022]
I asked the applicant to tell me about [Venue 1]. He described the different levels and activities at the club, which appeared to align with information I had seen online. He said that he had last visited the club about two months earlier with some friends. He went to [Venue 1] to drink beer, listen to music and connect with the gay community. He met some people from Germany and Italy and they shared stories and telephone numbers. They spoke by phone several times after that, but he had no further contact. He had not developed any lasting friendships with anyone he met at the club.
I asked the applicant if he had visited any other gay venues. He appeared to say that he had been to [Venue short name]. I asked if he was referring to [Venue 4]. He agreed that was probably the club he had attended and said he last attended in 2022. I noted that he had also mentioned [Venue 3]. He said that was correct, but he did not have a clear memory of the venue.
I asked the applicant if he had any other involvement with the gay community in Sydney, for example, had he sought out groups of gay Vietnamese people in Sydney. He said that he located a website for gay people in Vietnam, but he had not looked for any information about gay organisations in Sydney. He added that he had been reluctant to establish friendships with non-Vietnamese people in Australia because of his limited English and had not attempted to do so. I observed that he had been in Australia for many years and it seemed likely that he had sufficient English to establish relationships outside the Vietnamese community, but my question related to any attempt to connect with organisations for gay Vietnamese or Asian people in Australia. He said that he had never sought out any groups of that nature in Australia.
At the beginning of the hearing the applicant provided a number of photographs. Thirteen of them appeared to have been taken on the same night at [Venue 1]. The applicant said that these photographs had been taken before he was invited to the hearing. After some discussion, he said that the photographs had been taken to provide evidence for the Tribunal. I observed that while it was understandable that applicants would seek to obtain evidence to support their claims, it was also possible that he had attended [Venue 1] and arranged to have these photographs taken solely to support his application. He maintained that his claims were true.
The remaining photographs appeared to show the applicant watching the Mardi Gras and socialising with friends. I observed that these pictures were not evidence that confirmed the applicant’s claim that he was gay. He made no comment.
[Mr A] gave evidence at the hearing. He said that he had lived in the same house as the applicant from 2014 and 2018 and that he could confirm that he was in a relationship with [Mr C] during that time. He said that he had seen them in intimate situations, and they had invited him to accompany them to gay venues, but he was not gay and declined. He was unable to provide any further evidence regarding the applicant’s sexuality.
Mr Issa observed that people express their sexuality in different ways and there is no test or method for determining whether someone is gay. In essence, he submitted that the applicant had provided a credible account of his sexuality, which was supported by [Mr A], who was also a credible witness. Mr Issa stated that he had requested a postponement of the hearing because he had not had sufficient time to find other witnesses to support the applicant’s claims. However, neither he nor the applicant asked for time to provide additional evidence in support of his case.
Findings of fact

For the following reasons, I do not find the applicant to be a credible witness and I do not accept that he is homosexual.
In the first place, the applicant’s evidence regarding his gay relationships prior to leaving Vietnam was inconsistent and unpersuasive. In the written statement provided in July 2016 he claimed that he had been in a secret gay relationship with [Mr B] for about a year from the age of 17. During his interview with the delegate a year later he said that he and [Mr B] were close friends, but they were not in a gay relationship. In his submissions to the Tribunal, he claimed that [Mr B] was his boyfriend and while they had not had sex, they had kissed and held hands. He denied telling the delegate they were just friends. He also claimed for the first time that he had another two gay friends in Vietnam.
Following the hearing I reviewed the relevant portion of the recording of the interview. While the discussion was sometimes confused, it is clear that the applicant stated that [Mr B] was a close friend, not his gay boyfriend. He confirmed that the relationship was the same as his other friendships and did not suggest that it was a physical relationship in any way. He said that he had told this to the person who prepared his initial statement.
As noted above, I reviewed the recording of the applicant’s interview with the delegate following the hearing which confirmed that the applicant stated that he was friends with [Mr B], but they were not in a gay relationship of any kind. It is clear that he has changed his evidence over time. I can think of no plausible reason why he would have denied being in a gay relationship with [Mr B] during his interview with the delegate if his earlier evidence was true. I do not accept that he was in a gay relationship with [Mr B] or anyone else prior to his arrival in Australia. I believe he concocted this claim to support his application for protection in Australia.
Secondly, I found the applicant’s evidence regarding his friendship with other gay men in Vietnam unconvincing. These friendships were not mentioned in his submissions to the Department and when I asked him for additional information about them at the hearing his responses were hesitant and he had difficulty recalling their names, although he did eventually name one. While I acknowledge it is now over 10 years since the applicant first left Vietnam, I find it highly unlikely that he would not have been able to quickly recall the names of his closest friends during his final years in Vietnam, particularly if they shared the fact that they were gay in a society which did not approve of their sexuality. While I would not have rejected the applicant’s claims in their entirety for these reasons alone, I find this another indication that he has not provided an honest or accurate account of his life prior to coming to Australia.
Thirdly, the applicant’s evidence regarding his relationship with [Mr C] was inconsistent and lacked credibility. In July 2016 he said that they had been in a relationship since May 2014. On 28 June 2017 he provided a statement signed by [Mr C], which purported to confirm their relationship. Two days later his representative advised that the relationship had ended. During his interview with the delegate in July 2017, he said that the relationship had ended in December 2016. During the hearing he claimed that the relationship had been ongoing when he was interviewed by the delegate. When I observed that this was at odds with his earlier evidence, he said that the relationship was not good in July 2017, but they were still together. I acknowledge that honest applicants may be confused about the dates of past events. However, I do not accept that the applicant would have been unable to recall whether his relationship ended some six months before he was interviewed by the delegate or sometime later. In these circumstances and in light of my findings regarding his relationships in Vietnam, I am not satisfied that he was in a gay relationship with [Mr C] at any time.
In reaching this conclusion I have considered the evidence provided by [Mr A]. However, he is a friend of the applicant and not a disinterested witness, and his evidence consisted of little more than a brief statement purporting to confirm the applicant’s relationship with [Mr C]. I consider that limited weight can be placed on his evidence, and it does not overcome my significant concerns about the credibility of the applicant’s claims.
I have also considered the photographs which the applicant claims show him and [Mr C] together. At most the photographs show the applicant was friendly with a man who appears to be of Vietnamese background. I have given them no weight.
Fourthly, I found the applicant’s evidence regarding his friendships with other gay people and his connection to the broader gay community in Australia vague and lacking persuasive detail. His submissions to the Department and the Tribunal refer in general terms to participating in social events, attending Mardi Gras and visiting gay clubs.
When asked about his attendance at Mardi Gras during the hearing he said that he had watched the parade with friends and spoken to people in the audience, but he had not participated in the parade or any activities before or after the event. While his failure to participate in these events does not mean he is not gay, the mere fact that he observed the parade tells me nothing about his sexuality.
According to the statement provided shortly before the hearing he regularly attended three named gay clubs in Sydney. However, when asked about his attendance at these clubs over the past two years he said that he had only attended two, [Venue 2] and [Venue 1]. He had little knowledge of [Venue 2] and gave differing accounts of when he attended. His description of [Venue 1] was consistent with information on the club’s website. However, his account of his attendance at the club was general in nature and unconvincing. The only supporting evidence provided in relation to his claimed attendance at a gay club was a large number of photographs taken on the same night, which he confirmed were taken in order to provide evidence to support his application.
The applicant claims to have a small circle of gay friends in Sydney with whom he socialises and attends gay clubs. He claims that they were aware that he is seeking protection in Australia and they were aware of the hearing, but they were too busy to attend. He appeared to be reluctant to provide their names and contact information when asked to do so at the hearing and when I called the number provided nobody answered. In any event, he had ample opportunity to provide written statements from these friends prior to the hearing but he failed to do so. Despite being advised prior to the hearing that I would consider submissions for time to provide additional information following the hearing, no request was made.
On the evidence before me I am not satisfied that the applicant has a circle of gay friends in Sydney and I do not accept that he attends gay clubs regularly or even occasionally. I accept that he visited [Venue 1] on one occasion recently. However, I believe he did so solely to obtain photographs to support his application for protection.
CONSIDERATON OF CLAIMS
After considering all of the evidence, I do not accept that the applicant is homosexual. I do not accept that he had had a romantic or sexual relationship with [Mr B] or [Mr C] or [Mr D] or any other men at any time in Vietnam or in Australia. I believe that he claimed to be gay in order to obtain protection in Australia.
As I do not accept that the applicant is gay, it follows that I do not accept that there is a real chance that he would face serious or significant harm from members of his family, the broader community or the Vietnamese authorities on return to Vietnam because of his sexuality. There is no credible evidence before me which suggests that he faces a real chance of experiencing serious or significant harm for any other reason if he returns to Vietnam now or in the reasonably foreseeable future.
I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1). Therefore, he does not satisfy the criterion in s 36(2)(a). Furthermore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in s 36(2A) and s 5(1) of the Act. Therefore he does not satisfy the criterion in s 36(2)(aa).
CONCLUSION
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).
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).
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2023] AATA 2368

10 May 2023

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