1731421 (Refugee)

1731421 (Refugee) [2024] AATA 3970 (9 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731421
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jessica Henderson
DATE:9 July 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the first and fourth applicants protection visas.
The Tribunal has no jurisdiction with respect to the second, third and fifth applicants.

Statement made on 09 July 2024 at 5:39pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – victim of a con-artist – imputed political opinion – failed asylum seekers – financial hardship – serious, ongoing and irreversible harm and continuing hardship to an Australian family unit – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
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 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 16 November 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 7 July 2017. The delegate refused to grant the visas on the basis that they did not accept that the first applicant’s claims were genuine, that the first applicant did not claim to fear harm for a refugee nexus reason, and there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Vietnam there is a real risk that the first applicant will suffer significant harm.
The second, third and fifth applicants have subsequently filed forms seeking to withdraw their applications for review. On enquiry, the Tribunal was satisfied that each of them has been granted a visa of a different class since filing the application for review. The Tribunal accepted their withdrawals and no longer has jurisdiction to deal with their applications.
The first and third applicants appeared before the Tribunal on 15 April 2024 to give evidence and present arguments. The third applicant appeared as a witness for the first applicant, who is her father. The fourth applicant did not appear and did not provide any explanation for his non-appearance.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The first and fourth applicant were represented by an agent during the application process, but at the date of the hearing were no longer represented.
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the first or fourth applicant satisfied the criteria for a protection visa, either in their own right or as a member of the other’s family unit. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims made in the protection visa application
The first applicant’s reasons for leaving Vietnam were couched in his protection visa application (Q.90) in the following words:
I ESCAPE FROM MY COUNTRY BECAUSE I WAS BEEN BETRAY BY MY FRIEND NAME [Mr A], [Mr A] WAS MY BEST FRIENDS BUT HE CHEAT ME, HALF YEAR BEFORE I ESCAPE FROM MY COUNTRY [Mr A] ASK ME TO HELP HIM TO LEND SOME MONEY TO COVER HIS FAMILY HOSPITAL BILL FIRSTLY I DO NOT AGREE TO HELP HIM BECAUSE IM UNEMPLOYED PERSON IN VIETNAM I JUST BEEN SUPPORT BY MY FAMILY, [Mr A] GIVE ME AN IDEAL TO BORROW FROM MONEY LENDER I THOUGHT HE WILL NOT CHEAT ME OR BETRAY ME BECAUSE HE WAS A VERY GOOD PERSON AND HONEST PERSON, BUT THE TRUE HE WAS NOT I GOOD PEOPLE AS I THOUGH, AFTER HE GET THE MONEY AND HE DISAPPEAR, I HAVE TO REPAY THE DEPT BY MYSELF, AFTER FEW MONTH LATER I START HAVING FINANCIAL HARDSHIP TO REPAY THE PAYMENT FOR THE MONEY LENDER, THEY START TO VIOLENCE ME AND MY FAMILY, AFTER SUFFER A LOT FROM THEM WE DECIDE TO ESCAPE FROM THE COUNTRY.
In answer to question 91 the first applicant claimed that if he returned to Vietnam:
IF THE MONEY LENDER KNOW I WHEN BACK TO MY COUNTRY THEY WILL TRACE ME AND FORCE AND TORTURE ME TO COLLECT THEY DEPT.
The first applicant further claimed in the written application that he was beaten by the money lender, that he was a victim of violence, and that his house was damaged. His friends and close relatives were allegedly unwilling to help him because they were afraid the money lenders would look to them to meet the debt. The protection visa application said that the first applicant had tried to make a police report but that the officer asked him to settle it privately because the police did not have time.
The second through fifth applicants’ claims were limited to their membership of the same family unit as the first applicant.
First applicant’s evidence to the Tribunal
The first applicant gave evidence to the Tribunal at the hearing on 15 April 2024. He told the Tribunal that he came to Australia [in] August 2013 because he thought life was better in Australia. He said there were many things that were better in Australia because of the hardship in Vietnam.
The Tribunal asked the applicant about his parents again, and the applicant said that they were married, that his father worked on a farm, his mother was a housewife, that his parents were Catholic, and born in Vietnam.
The first applicant said that he had [number] siblings, [a] brother living in Australia, [a] brother living in Vietnam, [a] sister living in [Country 1], [a] brother in Australia, and [a] brother in [Country 1]. He said that [the] brother in Vietnam was working on the farm that his father had worked on.
With regards to his education, the first applicant said that he had completed school up to year [level] and had left school because he didn’t study very well at that time. After leaving school the applicant helped his father work on the field until he married. After he was married, he worked independently (from about 1999), but still at the same farm.
The applicant came to Australia on a working visa. It cost about 50 million dong for himself and his family to travel to Australia, which he paid himself. Initially on arrival in Australia the first applicant worked at [Employer 1]. He was a manager in the kitchen. His job included ordering the groceries, including meat and vegetables, and he made the sauces. He said that didn’t need English for that role – he was dealing with Vietnamese suppliers. He did not sit an English language test as part of the application process for his original working visa. He worked at [Employer 1] for four years before the restaurant ceased to operate.
The applicant started working at a different restaurant. He was unable or unwilling to say whether he had changed his type of visa when he changed to his new work role. He said that he had asked someone to handle his paperwork and was unsure of what had happened. The Tribunal told the applicant that the Department records showed that his work visa ended on 21 July 2017, and he agreed that it sounded right to him. The Tribunal asked the applicant what had happened after that and he said that his wife had asked around looking for someone who could handle his paperwork for him and help him get a new visa. He said that he was subsequently ‘cheated’ with ‘false documents’. The Tribunal asked the applicant who had completed his protection visa application and he said a woman called “[Ms B]” had completed the form for him. His wife was introduced to [Ms B] through other people. He did not consult a lawyer or a migration agent – his wife did all of the arrangements for the visa.
The Tribunal asked the applicant why he didn’t wish to return to Vietnam in 2017 and he said that life in Australia was better. He had freedom and his children were doing well and he just wanted to stay. He said that he had ‘the paperwork done’ and ‘that woman tricked me’. The Tribunal asked what he meant and he said that his wife did the paperwork, but they had engaged an agent and that they had paid nearly AUD $200,000 for the visa and then the agent had just disappeared. He was not aware of what she had put in the form at the time. The applicant said that he understood that what had happened was that she had ‘made bogus documents’ to get him and his family Australian citizenship. The Tribunal asked specifically about the claim to be in debt in Vietnam and the applicant repeated that it was a bogus document.
The Tribunal asked the applicant whether he owed money in Vietnam and the applicant said that when he left Vietnam he had owed some money but that it was not significant. The Tribunal asked him whether anyone had ever threatened him because he owed them money and he said he had never been back to Vietnam. The Tribunal asked the applicant whether, before he had left Vietnam, anyone had threatened him and he said no.
The Tribunal asked the applicant whether he had ever lent money to a friend to pay a medical bill and he said that he had lent about $10 million dong; about $584.00 Australian dollars according to today’s exchange rate.
The Tribunal asked the applicant whether he had used the same person to file his application for review to the Tribunal as had completed his protection visa application. He said that he did not know. The Tribunal asked him about the email address on his application and he said that his children used email but he did not. He confirmed that his children would receive emails at the address that was on his form.
The Tribunal asked the applicant whether he was afraid of returning to Vietnam and he said that he was afraid because his house and land had been on-sold and he didn’t know how life would be; he has become used to life in Australia. He also said that a lot would happen to him if he returned to Vietnam. He would be “attacked or something”. The Tribunal asked why and the applicant said that he had threatened the friend he had lent money to. The Tribunal asked the applicant what he meant by threatening and the applicant said that he had asked someone to talk to his friend and get his money back. There were a lot of long pauses by the applicant when he was giving this evidence and at one stage he tried to talk to his daughter. Then the applicant said that the person he had lent money to had called and threatened to ‘do something’ to him if he returned to Vietnam.
Third applicant’s evidence to the Tribunal
The third applicant said that the first applicant lives with her and she takes care of him. She said that she does not have access to the email on the Tribunal’s application form; she has set up a Hotmail address for the applicant on his phone. She said that he is computer illiterate and needs a lot of assistance to communicate using computers.
The third applicant said that in 2017 her parents had been under the impression that they had been granted visas. They had tried to get her father another working visa, but he missed the IELTS score required for a working visa. Then they engaged [Ms B] and received a notice saying their protection visas had been granted. This notice allowed them to get Medicare and Centrelink payments and they thought it was real. This is the document that her father refers to as the bogus document – the fake notice that protection visas had been granted.
The third applicant gave evidence about her father’s mental and physical health. She said that he has a heart murmur and suffers depression since his separation and divorce in 2017. The first applicant is living with the third applicant and her family. She has one child – a little boy who is [age] years old son. Her husband and son are both Australian citizens. Her father, the first applicant, lives with them and is a part of their family. She says that he is frail and that, although it would not be the end of the world if he has to go back to Vietnam, it would be very difficult for him.
She said that they had not seen a doctor, that her father was working and was able to take care of himself financially. She was deeply concerned about how he would manage without her, and expressed her concern that all his family were going to be in Australia and he would go back alone. She was also clear that she would continue looking after him as best she could from Australia, but that she doubted whether it would be sufficient for him to be safe and comfortable. The third applicant was extremely unhappy at the prospect of her father being returned to Vietnam without any of his family and cried when she gave her evidence about it.
The third applicant said that the Vietnamese consulate in Australia had refused to renew the first applicant’s passport, because they had concerns that he was making a political claim for protection. She said that they had told the consulate that her father was not making political claims however they were communicating through an agency and she’s not sure exactly what was said or in what terms. She understands that the consulate said that they needed a police clearance in Vietnam to renew her father’s passport, and they cannot get one for the first applicant because he no longer has a valid identity number in Vietnam. She is concerned about what will happen to him if he leaves Australia without a valid passport or identity number.
First applicant’s claims
Refugee criteria
The first applicant’s fear of returning to Vietnam appears on his evidence to be based on economic issues, and not for the essential and significant reason of a refugee nexus criteria. Even if the Tribunal accepted the first applicant’s vague debt related claims they do not amount to an immutable characteristic and are otherwise unrelated to refugee nexus criteria.
The Tribunal has considered whether any claim arises from the first applicant’s unfortunate experience with his previous agent. The Tribunal accepts that the first applicant engaged through his wife a person to represent his interests named [Ms B]. The Tribunal further accepts that [Ms B] took an enormous amount of money from the first and second applicants and then tricked them into thinking that she had obtained visas for them. That is very unfortunate and a matter that the applicants should obtain some civil legal advice about.
The third applicant says that [Ms B]’s filing of the protection visa application has had consequences for the first applicant. She says that the Vietnamese consulate has declined to renew the first applicant’s passport because of concerns that he has made political claims. The Tribunal accepts the third applicant’s evidence as honest, but she is unable to provide the Tribunal with any details of exactly what the consulate said or provide any documentary evidence.
The Tribunal has considered whether the first applicant might have a claim based on an imputed political opinion after spending ten years in Australia and making a protection visa application.
Country information for Vietnam suggests that failed asylum seekers are interviewed on their return to Vietnam with questioning usually lasting one to two hours to gather any involvement in illegal activities.[1] Occasionally a returnee might be detailed for multiple days or recalled for further questioning.[2]
[1] 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.30, p.33
[2] 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.30, p.33
The first applicant travelled to Australia to work, which he did successfully for four years. He does not speak English. He has not raised any claim based on involvement in any anti-government group in Australia. He is computer illiterate and has no social media footprint. He departed Vietnam lawfully. The country information suggests that, even if questioned, he is unlikely to be imputed with any political opinion.
The Tribunal finds that there is not a real chance that the first applicant will be at risk of serious harm for a refugee nexus reason.
Complementary protection criteria
The Tribunal accepts that the first applicant may face financial hardship on his return to Vietnam. However, the Tribunal does not accept that it would amount to homelessness, given that his daughter has indicated ongoing support for him from Australia. Country information suggests that Vietnam has an expanding social welfare system. The Vietnam government takes a four-pillar approach to social welfare: secure employment through employment programs; social insurance; social assistance for the most vulnerable members of society; and fundamental amenities for the population including support for education, healthcare, housing, safe drinking water[3] The third applicant says that her father is still working in Australia and still capable of managing his own finances. The Tribunal considers that he would be able to find some employment with the support of the Vietnam government’s program, and that in any event his daughter would support him financially to whatever extent she is able. DFAT and other sources report that traditional social roles normalise families providing support for their sick and elderly.[4] The first applicant has three children who are now permanent residents of Australia, all of whom have a traditional social obligation to support their father.
[3] ‘The Path to Vietnam's Welf are System Sustainability: Current State and Challenges’, International
[4] 2022 DFAT Report, at [2.8]; ‘Establishing activity centers f or elderly people in metropolitan areas of

The Tribunal has considered whether the first applicant’s claims as raised in his protection visa application have merit and has concluded that they do not. The first applicant resiled from them in their entirety during the hearing before the Tribunal and repeatedly disavowed knowing the content of his protection visa application before it was filed. His evidence was firm and clear; he only had a very small debt when he left Vietnam and it is not significant. He has not returned to Vietnam since then. His evidence was that he has not been threatened because he owes money.
The first applicant made a very vague claim at the end of his evidence to have threatened a person who owes him money and who he says may hurt him on his return to Vietnam. There is no detailed evidence before the Tribunal about this, and when the Tribunal questioned the applicant about it he said that he had asked someone to follow up on the debt and seek its repayment. That does not amount to a threat, and there is no obvious reason why it would give rise to a threat against the first applicant. The Tribunal considers that the first applicant’s claim to be at risk of harm because he has lent money to a friend which he then sought to recover to be not credible.
The Tribunal finds that there is not a real risk of serious harm to the first applicant if he returns to Vietnam.
Fourth applicant’s claims
The fourth applicant did not attend the hearing.
The first applicant said that he had expected that the fourth applicant would attend. It had been indicated on the hearing response form that the fourth applicant would attend the hearing. However, neither the first nor the third applicant was able to speak to the reason for the fourth applicant’s non-attendance.
The fourth applicant has not raised any claims aside from his membership of the same family unit as his father, the first applicant. No potential claims are suggested by the facts presently before the tribunal.
For the reasons given above the Tribunal is not satisfied that the first or fourth applicants is a person in respect of whom Australia has protection obligations. 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.
REQUEST FOR MINISTERIAL INTERVENTION
The Tribunal explained to the third applicant during the hearing why her father’s claims appeared weak. The third applicant requested that the Tribunal consider referring the matter for Ministerial intervention.
The Tribunal has considered s. 417 of the Migration Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has had regard to the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual.
The Tribunal considers that there are reasonable grounds for referring the matter for Ministerial intervention. Both the first applicant and his daughter appeared to be genuine, honest people who had tried to approach the Department honestly and with reasonable intentions. The first applicant came lawfully to Australia on a working visa and lost his sponsoring employer through no fault of his own. The Tribunal accepts the evidence of the first and third applicants that they were victims of a con-artist who took the first applicant’s money and led him to believe that he had the requisite visa to continue working in Australia. The first applicant’s ability to continue working in Australia on working visas was unfairly compromised.
Since arriving in Australia the first applicant has parted from his wife, on whom he has clearly been heavily dependent for his personal organisation and his communications. He is presently living with an adult daughter, his son-in-law who is an Australian citizen, and his grandson who is an infant Australian citizen who is benefitting from living with grandad. They have formed a caring and co-dependent family unit. The computer illiteracy of the first applicant will make it difficult for his family to have meaningful interactions with him from Vietnam. The loss of contact between grandfather and grandson at this early stage in [the grandson’s] life would not only be a great loss for [the grandson] emotionally and developmentally but would also have an economic and psychological impact on [the grandson’s] parents, who rely on the first applicant for ad hoc support caring for [the grandson].
The first applicant’s daughter displayed deep and genuine grief at the thought of losing her father, who she loves having live with her. Aside from the emotional connection, the ability for a mother to rely on a resident parent to provide an extra layer of support is invaluable. The applicant is only [age] and young enough to be an active and engage grandfather.
The first applicant demonstrates some serious albeit undiagnosed symptoms of depression, and his daughter believes he is depressed, although he is still able to work and is committed to providing for himself. All of the first applicant’s immediate family live in Australia. His hard work, financial investments and commitment to his family is responsible for the roots that they have all been able to put down in Australia enabling them to obtain their own visas to stay. It is ironic, and unfair, that they are all now able to stay and he is not. It is a situation that is designed to exacerbate his post-divorce depression.
In the Tribunal’s view there are strong compassionate circumstances which if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit. There are also compassionate circumstances regarding the first applicant’s psychological state coupled with the ongoing residency of his family in Australia. These are unique and exceptional circumstances set out in the Ministerial Guidelines and in the Tribunal’s view the first applicant’s case warrants being brought to the Minister’s attention. The Tribunal will refer the first applicant’s matter to the Department to be brought to the Minister’s attention.
The fourth applicant is [age] years old, and on the available evidence is self-sufficient. There are still visa opportunities available to him, if he seeks to take advantage of them. There is no indication that he makes any meaningful contribution to his siblings or parents lives in Australia, nor that any Australian citizen is dependent on him in any way. He has not made a request for Ministerial intervention and the Tribunal has not identified any unique or exceptional circumstance in relation to him that would warrant intervention. The Tribunal has decided not to refer the matter but notes that the fourth applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the first and fourth applicants protection visas.
Jessica Henderson
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.
…

Journal of Public Administration, Management and Economic Development, Jan Vrba, 30 June 2023,

p. 4

Vietnam: preference and willingness-to-pay’, Journal of Multidisciplinary Healthcare, 18 September
2019, p.798, 20200529222742; ‘JICA and World Bank Jointly Support Vietnam to Meet Needs of

Aging Population’, The World Bank, 7 August 2019

[2024] AATA 3970

9 July 2024

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Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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