1727715 (Refugee)

1727715 (Refugee) [2022] AATA 3839 (11 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Cuong Nguyen (MARN: 0215050)
CASE NUMBER:  1727715
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:11 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 August 2022 at 3:21pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – threats of harm by gang members – vague and undetailed evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.05A; Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
WAKK v MIMIA [2005] FCAFC 225
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 and Border Protection on 27 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 11 November 2016. The delegate refused to grant the visas on the basis that the first named applicant, the second named applicant and the fourth named applicant were not persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. In relation to the third named applicant, the delegate refused to grant him a visa on the basis that the delegate found that the third named applicant was not a member of the same family unit as the first named applicant as defined in s5(1) of the Act and in Regulation 1.05A(2) of the Migration Regulations 1994 (Cth).
The applicants were 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) (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 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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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.
ISSUES
The issue in this case are whether there is a real chance that if the applicants return to Vietnam they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Claims and evidence
Protection Visa Application
The applicants applied to the Department for protection on 11 November 2016. Only the first named applicant made claims for protection, with the other applicants relying on their membership of the first named applicant’s family unit.
In his Application for a Protection Visa Form 866C submitted to the Department, the first named applicant stated that he was born on [date] in Soc Trang, Vietnam. He listed his ethnicity as Vietnamese and his religion as Buddhism. He stated that he had married his wife, the second named applicant, [in] April 2004 in Vietnam. He stated that his parents and one brother were still living in Vietnam whilst another brother was living in Australia.
The first named applicant stated that he had arrived in Perth, Australia [in] December 2007 on a valid Vietnamese passport as the holder of a valid Australian subclass 457 visa. He indicated that he had renewed his Vietnamese passport in Australia in 2013. The applicant stated that he had lived at the same address in Soc Trang, Vietnam from February 1986 until his departure for Australia in December 2007. Since his arrival in Australia, he had been living at the same residential address in Perth. He stated that he had completed primary school and secondary school in Vietnam. He claimed that he was currently unemployed but had been employed at a [location in] Western Australia from January 2008 to October 2016.
In his application form, the first named applicant claimed that he was seeking protection in Australia so that he did not have to return to Vietnam. He claimed that he had to leave Vietnam because he had been threatened by Vietnamese with guns because he was accidently hit by a car in 2007. He claimed the person who hit him was a gangster and has many members in Vietnam. He claimed that the day after the accident the guys had come to his house with a gun and threatened him to pay for the repairs. If he did not do so, he would be killed. The first named applicant stated that at this time he had no money, so he asked him to come back in 3 days. He stated that after the person left, he quickly reported the problem to the nearest police station.
The first named applicant claimed that three days later, when the guy again came with his gun, the police officer arrested him. The first named applicant claimed that when his gang members found out, they came to his house wanting revenge but luckily the police officer on patrol passed his house and they ran away.
The first named applicant claimed that he was very afraid that something bad would happen to him and his family, so he quickly applied for a visa to escape his country. He stated that before that, he was very afraid and kept hiding at his friend’s house to avoid these people.
The first named applicant stated that if he returned to Vietnam he would be killed by these people because they want revenge. He claimed that he had been threatened and beaten by these people, they had pointed a gun at him and threatened him to pay money for repairs. He claimed that the police arrested the people, but all their brothers were unsatisfied with him and want revenge or to force him to cancel his report. He claimed that he could not move to another part of Vietnam to avoid the harm he fears because they have guns, and he was afraid that if they found him in another state, they would shoot him with the gun. For his own safety, and that of his family, he had to escape from them to another country.
The first named applicant claimed that if he returned to Vietnam he would be killed, or his family would be killed. He stated that the authorities had advised him to cancel the report so that they did not attack him anymore. He claimed that he suspected that the authorities had taken payments under the table from these guys. He claimed that if he was forced to relocate in Vietnam, his life would be in danger as he would be killed by the gang members at any time.
In the Form 866B lodged with the application for protection, the second named applicant was listed as being born on [another date] and being the wife of the first named applicant. The third named applicant is listed as being born on [date] and is the son of the first named and second named applicants. The fourth named applicant is listed as being born on [date] and is the daughter of the first named and second named applicants.
Together with their application, the applicants provided copies of the biodata pages of their Vietnamese passports.
The delegate refused to grant the applicants protection visas on 27 October 2017. The delegate’ decision record, which the applicants provided to the Tribunal, records that by email dated 20 September 2017, the first named applicant was invited to an interview with the delegate scheduled on 24 October 2017. According to the delegate’s decision record, the first named applicant did not attend the interview on the scheduled date and did not provide any reason for the non-attendance.
Application for Review
The applicants applied to the Tribunal for a review of the delegate’s decision on 9 November 2017. The applicants also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
The applicants were represented in relation to the review by a registered migration agent.
On 13 July 2022 the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 28 July 2022. In this correspondence, the applicants were also invited to provide a written submission to the Tribunal in relation to their claims by 21 July 2022.
On 21 July 2022 the applicant’s representative forwarded a response to this invitation signed by the first named applicant which advised the Tribunal that the applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. The date on the form signed by the first named applicant is somewhat unclear but appears to be 19 July 2022.
The applicants did not submit any further submission to the Tribunal. This matter has therefore been determined on the basis of the evidence provided by the applicants in support of their claims for protection.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity. The applicants arrived in Australia on valid Vietnamese passports. The Tribunal therefore accepts that the applicants are nationals of Vietnam and has assessed their claims accordingly.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The first named applicant has claimed that he was involved in a motor vehicle accident with a gang member in Vietnam in 2007. He has stated that on the day after this motor vehicle accident, the gang member came to the first named applicant’s house and demanded payment from the first named applicant for the damages to their car, threatening to kill him if he did not pay for the damage. The first named applicant has claimed that he told the gang member that he had no money on him and asked him to return three days later. He claims that he then immediately reported the threats to the local police and when the gang member returned with a gun to his home three days later, the gang member was arrested by the police. The first named applicant has claimed that when this person’s fellow gang members found out, they came to his house wanting revenge and pointing guns at him but luckily the police officer on patrol passed his house and they ran away. He has claimed that following this incident, he was very afraid and quickly applied for a visa to Australia, but in the meantime, he remained afraid so he went into hiding at a friend’s house to avoid harm from the gang members. He has also claimed that authorities had warned him that to avoid harm he should withdraw his report about the incident and that he feared that the authorities had received payments under the table from the gang members.
The first named applicant’s claims about being involved in a motor vehicle accident with a gang member and his subsequent claimed altercations with the gang member, his fellow gang members and authorities are vague and lacking in detail. He has stated that the motor vehicle accident happened in 2007 but has not specified the date or even the month when it allegedly occurred. The first named applicant has not outlined the damage incurred to his vehicle or to the other party’s vehicle. He has not outlined how he came to know that the other party was in fact a gang member or how much money this person demanded be paid for the repairs to his vehicle. The first named applicant has not stated how many gang members came to his house after their alleged fellow gang member had been arrested, the date and time when they allegedly came to his house or what demands they made of him during this visit. The fist named applicant has not stated the name of the friend at whose house he allegedly hid from these gang members, how long he stayed at this house or the dates on which he allegedly stayed at this house. The first named applicant has not stated when the authorities warned him to withdraw his report to avoid harm or who the person in authority was who had allegedly provided this warning to him. The first named applicant also has not outlined on what basis he believed that the authorities had received payments under the table from these alleged gang members.
The Tribunal’s letter of 13 July 2022 inviting the applicants to a Tribunal hearing put the applicants on notice that the Tribunal had considered all of the material before it in relation to their application but was unable to make a favourable decision on that information alone. However, the applicants elected not to attend the Tribunal hearing and did not submit any further information or evidence to the Tribunal.
As noted above, s 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section of the Act, the Tribunal does not have the responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[1]
[1] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
On the basis that the Tribunal’s letter of 13 July 2022 clearly informed the applicants that after considering the material before it the Tribunal was unable to make a favourable decision on that information alone, and on the basis that the applicants declined the invitation in that letter to appear before the Tribunal to give evidence and make submissions or to provide further information or evidence supporting their claims in response to that invitation, the Tribunal considers that the applicants have been afforded a reasonable opportunity to provide further information and evidence to the Tribunal about their claims but have chosen not to do so. Accordingly, as the applicants have had a reasonable opportunity to provide further information and evidence, the Tribunal has proceeded to make a decision on the evidence before it without seeking any further information from the applicants.

Based on the vague and undetailed evidence before it, the Tribunal does not accept that the first named applicant was ever involved in a motor vehicle accident with an alleged gang member in 2007 as claimed and does not accept that any of the events claimed by the first named applicant to have occurred as a result of this alleged motor vehicle accident actually occurred as claimed. This includes claims that the alleged gang member attended the applicant’s house with a gun demanding any payment for alleged damages to his motor vehicle, that the first named applicant reported the matter to local police, that upon returning to the first named applicant’s house the gang member was arrested by police, that aggrieved fellow gang members then attended the first named applicant’s house pointing guns at him and seeking revenge, that these gang members were scared off by a passing police patrol, that these incidents motivated the first named applicant to seek a visa for Australia, that the first named applicant went into hiding at a friend’s house to avoid harm from the gang members, that he had been warned by authorities to withdraw his report to police to avoid harm or that the authorities had received under the table payments from these gang members.
Accordingly, on the evidence before it, the Tribunal finds that the first named applicant was never involved in a motor vehicle accident with a gang member in 2007 as claimed, this alleged gang member never attended his house with a gun demanding payment for repairs to his motor vehicle as claimed, the alleged gang member was never arrested by police when he allegedly returned to the first named applicant’s house as claimed, that aggrieved fellow gang members attended the applicant’s house armed pointing guns at him and seeking revenge or were scared off by passing police as claimed, that the first named applicant did not seek a visa for Australia because of fear of harm from these gang members as claimed, that the first named applicant did not go into hiding at a friend’s house to avoid harm from these alleged gang members as claimed, that the first named applicant was never warned by authorities to withdraw his report to police to avoid harm as claimed and that the authorities never received under the table payments from these gang members as claimed.
The first named applicant has claimed that if he was forced to return to Vietnam now or in the reasonably foreseeable future he fears that he and his family would be harmed by these gang members who are seeking revenge for the arrest of their fellow gang member and who would try to force the first named applicant to withdraw his report about the incident with the gang member.
However, on the evidence before it, the Tribunal has found that the first named applicant was never involved in a motor vehicle accident with a gang member in 2007 as claimed. On the evidence before it, the Tribunal has also found that this alleged gang member never attended his house with a gun demanding payment for repairs to his motor vehicle as claimed, the alleged gang member was never arrested by police when he allegedly returned to the first named applicant’s house as claimed, that aggrieved fellow gang members attended the applicant’s house armed pointing guns at him and seeking revenge or were scared off my passing police as claimed, that the first named applicant did not seek a visa for Australia because of fear of harm from these gang members as claimed, that the first named applicant did not go into hiding at a friend’s house to avoid harm from these alleged gang members as claimed, that the first named applicant was never warned by authorities to withdraw his report to police to avoid harm as claimed and that the authorities never received under the table payments from these gang members as claimed. Accordingly, based on the evidence before it, the Tribunal is not satisfied that if the first named applicant was to return to Vietnam now or in the reasonably foreseeable future that there is a real chance that he or his family would be harmed by gang members seeking revenge for the arrest of their fellow gang member and further or to force him to withdraw the alleged report made by the first named applicant about their fellow gang member.
Therefore, having considered the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the first named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the first named 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 has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the first named applicant will suffer significant harm as defined in s 36(2A) of the Act.
As outlined above, based on the first named applicant’s vague claims that were lacking in detail, the Tribunal has already found that the first named applicant was never involved in a motor vehicle accident with a gang member in 2007 as claimed, this alleged gang member never attended his house with a gun demanding payment for repairs to his motor vehicle as claimed, the alleged gang member was never arrested by police when he allegedly returned to the first named applicant’s house as claimed, that aggrieved fellow gang members attended the applicant’s house armed pointing guns at him and seeking revenge or were scared off my passing police as claimed, that the first named applicant did not seek a visa for Australia because of fear of harm from these gang members as claimed, that the first named applicant did not go into hiding at a friend’s house to avoid harm from these alleged gang members as claimed, that the first named applicant was never warned by authorities to withdraw his report to police to avoid harm as claimed and that the authorities never received under the table payments from these gang members as claimed. Apart from claims relating to these claimed events in Vietnam in the past, the first named applicant has not made any claims that he fears harm for any other reason in Vietnam, and no other claims arise from the facts before the Tribunal.
Having considered all of the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the first named applicant will suffer significant harm if he were to return to Vietnam.
Accordingly, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the first named 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.
The second named, third named and fourth named applicants have not made any claims of their own instead relying on their membership of the first named applicant’s family unit as his wife (in relation to the second named applicant), as his son (in relation to the third named applicant) and as his daughter (in relation to the fourth named applicant).
Notwithstanding this, the Tribunal has considered whether on the evidence before it the second named applicant, the third named applicant or the fourth named applicant (collectively referred to as “the secondary family members”) would have a profile which would give rise to any claims for protection not articulated by them. The first named applicant has made a vague and undetailed claim that he feared harm for both himself and his family from the gang members who were allegedly aggrieved at the first named applicant. However, the Tribunal has already found that it is not satisfied that if the first named applicant was to return to Vietnam now or in the reasonably foreseeable future that there is a real chance that he or his family would be harmed by these allegedly aggrieved gang members. Accordingly, based on this finding and on the evidence before it, the Tribunal also finds that it is not satisfied that if the second named applicant, the third named applicant and the fourth named applicant were to return to Vietnam now or in the reasonably foreseeable future that there is a real chance that would be harmed by these allegedly aggrieved gang members, either individually or as members of the first named applicant’s family unit.
Having considered the information before it, the Tribunal finds there is no information before it that indicates that the second named applicant, the third named applicant or the fourth named applicant, either individually or cumulatively, have a personal profile that would give rise to any other claims other than the claim outlined above. This is consistent with these applicants not having raised any claims of their own in their original application for protection or before the Tribunal on review.
As the Tribunal has found that the first named applicant does not satisfy s 36(2)(a) or (aa), the Tribunal further finds that the second named applicant, the third named applicant and the fourth named applicant each do not satisfy the criterion in s 36 (2) on the basis of their membership of the first named applicant’s family unit or for any other reason.
In relation to the third named applicant, as the Tribunal has found that he does not satisfy the criterion in s36(2), it finds that it is not necessary to further consider the matters considered by the delegate in the decision of 27 October 2017 in relation to s5(1) of the Act and Regulation 1.05A(2) of the Migration Regulations 1994 (Cth).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Katsambanis
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.
…

[2022] AATA 3839

11 August 2022

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