1800037 (Refugee)

1800037 (Refugee) [2022] AATA 3777 (9 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Dr Tung-Bao Ngo (MARN: 0006620)
CASE NUMBER: 1800037

COUNTRY OF REFERENCE: Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:9 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2022 at 8:40am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – victim of loan shark – business debt – economic conditions – unemployment – fear of physical assault – visits to family home – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 Home Affairs on 20 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] September 2008 and departed Australia [in] December 2008.
The applicant arrived again in Australia [in] October 2014. The applicant made an application for a protection visa on 7 December 2016.
A delegate of the Department refused to grant the visa on the basis that they were not satisfied the applicant is a refugee as he does not claim to fear harm for one of the reasons in s 5J(1)(a); and they were not satisfied the applicant is owed complementary protection as, having regard to relevant country information, they were satisfied the applicant could access effective protection measures in Vietnam.[1]
[1] Movement details and delegate reasons provided in delegate decision, a copy of which was provided by the applicant to the Tribunal.
The applicant applied to this Tribunal for an independent review of the delegate’s decision on 1 January 2018. At the time of making the application, the applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 24 August 2022 to give evidence and present arguments. 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.
Following the hearing, the applicant’s representative provided written submissions to the Tribunal, the relevant parts of which are discussed further below.
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 applicant meets any of the alternative criteria in s 38(2)(a), (aa), (b) or (c), that is, whether he is 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 of such a person.
Country of nationality
The applicant travelled to Australia on a Vietnamese passport and has at all times maintained he is a citizen of Vietnam. The Tribunal was assisted at the hearing by an interpreter in the Vietnamese language. The Tribunal accepts the applicant is a Vietnamese citizen and has assessed his claims against Vietnam as his country of nationality.
The applicant’s personal background
The applicant told the Tribunal at hearing that he was born in Saigon and lived in Saigon the entire time he was living in Vietnam. He told the Tribunal that he was living in Go Vap district before leaving Vietnam for Australia, in a house in which his [family members] are now living. The applicant stated that his parents are deceased, that he has [specified family members] and that one sister is living in Australia and his other siblings are all living in Saigon. He stated he does not have any family members in any other areas of Vietnam. The applicant stated he was married in 2002 and that, when he left Vietnam, his wife returned to her village with their [child] who is turning [age] years of age this year. He stated that he does not have any other children. The applicant stated that his wife is now living some two kilometres away from the area he previously resided. The information given by the applicant at the hearing about his background was broadly consistent with the information he had provided in his written protection application and the Tribunal accepted the applicant’s oral evidence about his background and family composition as correct.
Claims for protection
In his written protection application, the applicant stated that he had left Vietnam because of distrust of the judiciary and law enforcement, poor system of government, bureaucracy starting from the lowest level up to the top, the destruction of the global economy and impact on the nation’s economy, poverty and unemployment. The applicant stated he had been living in harsh conditions and had to borrow money from relatives and could not pay the debt. He lived in mental distress and fear. Many people in Vietnam who had a problem like him had been hit, injured and killed. The applicant stated he had experienced harm in Vietnam in the form of verbal threats. He had also lived in hardship because of the bad economy.
At the Tribunal hearing, the applicant gave evidence of having left Vietnam because he had borrowed money and been unable to repay this, as discussed further below. The applicant gave evidence to the Tribunal that there were no other reasons he had left Vietnam and no other reasons he feared returning to Vietnam. The Tribunal accepted this part of the applicant’s evidence and finds from this evidence that the applicant did not leave Vietnam because of distrust in the judiciary and law enforcement, a poor system of government, the Vietnamese bureaucracy, the destruction of the global economy or impact on Vietnam’s economy, poverty or unemployment. The Tribunal finds that the applicant does not fear returning to Vietnam for any or all of these reasons.
The applicant gave evidence to the Tribunal at hearing that he had worked in Vietnam as [an occupation 1], [offering specified services] for ‘a few years’. He stated he had opened [an occupation 1] shop with another individual which had run at a loss. The applicant was asked for details of the business and stated that he had run the business in 2012 and had had the business for two years. He had run the business with a friend whose name is ‘[Mr A]’. He could not tell the Tribunal [Mr A’s] full name and stated this was because it had been a long time and they had called each other by their first names. He stated he met [Mr A] when they studied the [occupation] together in 1994 and they then [worked] together and borrowed money together. The applicant stated the name of the business was ‘[Business 1]’. The Tribunal asked the address of the business and the applicant stated it has been a long time, he cannot remember the exact address and it was through a lease. He stated the landlord’s name was ‘[Mr B]’. The Tribunal asked whose names were on the lease and the applicant stated there were two names, and that his name was on the lease. When asked who the other name on the lease was, the applicant then stated they had ‘done it together’ but only his name was on the paperwork as multiple names are not allowed on leases in Vietnam, for tax purposes. The applicant stated that the business did not have a bank account.
The Tribunal asked the applicant what money he had needed to set up the business and he stated that he had borrowed [amount] dong which he had to repay in the amount of [amount] monthly. The Tribunal asked what items he had needed to purchase to start up the business and he stated it was ‘equipment and tools’. When asked what equipment and tools, he stated it was the same things that are needed in Australia [for a similar business], and [specified] items. The Tribunal asked what were the names of the tools the applicant needed for the busines and he stated [specified equipment 1]. When asked what other tools the applicant had needed, he stated he needed a lot of lease money and rent money. When asked again what equipment was needed aside from [specified equipment 1], the applicant stated [other equipment]. When asked why he was unable to describe the equipment he used for his business, he then stated he had needed [more specific tools and gear]. The applicant stated that the rent for the business was [amount] per month and that he had last spoken to [Mr A] when he left in 2014.
The applicant was asked about the money he claimed to have borrowed and stated that he borrowed this in 2012. He borrowed money from ‘[Mr B]’ who was introduced to him by a friend. He and his business partner [Mr A] had each borrowed [amount] dong. The Tribunal asked what was the process for borrowing money from [Mr B] and the applicant stated that he had gone to meet them, they saw them working, and if the applicant made money he would pay him. He stated he had gone to meet [Mr B] in District 3 in Saigon. He stated he does not know the address. The Tribunal asked the applicant to describe the building he had visited when he met with [Mr B] and he stated that it was a long time ago and he cannot remember the building, that he remembers the road, but that Vietnam is ‘renovated a lot’. The Tribunal asked what information the applicant had given to [Mr B] when he applied for the loan and he stated that he explained why he needed the money and they came to the shop to see where the applicant would be. The applicant stated he was given the money in cash. As to why they would do this, given there would be no record of what the applicant had borrowed, the applicant stated that they had written a document that said the applicant would pay this back.
The applicant gave evidence that he was given the loan money in 2012, around January. The Tribunal asked about the document the applicant had signed and he stated there was a written document saying he had borrowed money and agreed to pay it back. He stated that this document is in Vietnam. He added that he is scared to return because they would chop off his finger and they sometimes come to his wife’s house but she tells them that they are divorced. The Tribunal asked why the applicant had not brought the document with him to Australia, or had not organised to have it sent to Australia, given it would support his claims for protection. The applicant stated that he was hoping he could come to Australia and ask his sister to give him money. The Tribunal observed that it had been six years since the applicant had applied for protection and asked again why he had not organised the loan document to be sent to him in Australia and the applicant stated that when he had left Vietnam, he had cancelled his phone number and no longer has the person’s contact number.
The applicant stated that the loan arrangement was for him to repay [amount] dong per month, which was only the interest component of the payment. He stated that he had made four months of payments and that after that, he had no money because the business was running at a loss. He stated that they kept adding interest to the amount he owed.
The Tribunal asked whether anything had happened to the applicant before he left Vietnam and he said that they were threatening him that if he couldn’t pay, they would chop off his fingers. He said he would borrow money from his sister. For a few months they kept threatening his wife and child. The Tribunal asked the applicant how many times he was threatened and he stated that this had happened every few months. The Tribunal asked why the applicant had not left Vietnam sooner and he stated that he was running the [business] which was running at a loss.
The Tribunal observed that the applicant had given evidence that he had borrowed the money in around January 2012, that he had made four months of repayments, so up to around May 2012, but that he had not left Vietnam until October 2014, over two years later. The Tribunal asked why the applicant had remained in Vietnam for so long if he was in fear of the individual he had borrowed money from. The applicant stated it was because he had a loan and a business and he tried to turn things around but couldn’t handle it. The Tribunal asked what the lender had done to make the applicant leave Vietnam and he stated that they had threatened to cut his fingers and ear and he was very scared.
The Tribunal asked whether anything had happened since the applicant had arrived in Australia that made him fear returning and he stated that every two to three months they would come to his wife’s house and make threats. The Tribunal asked why the applicant’s wife has not moved to another address and he stated they came to threaten his wife and child and she told them they were now divorced. The Tribunal asked when was the last time they had come to his wife’s house and the applicant stated it was a long time and he couldn’t remember, but his wife would call and tell him about it. The Tribunal asked when was the last time the applicant’s wife had called him to tell him about it and he said that it had been two months ago. When asked why the applicant had earlier stated he couldn’t remember if they had gone to his wife’s only two months ago, the applicant stated that every two months they would come and threaten and his wife would tell him they came again.
The applicant gave evidence that he has been working in Australia on a farm. The Tribunal asked whether the applicant had been sending money back to the individual he claims to owe money to and he stated that he has only just got the job; he sometimes has work and sometimes doesn’t have work. When asked what money he has sent back to the lender since he has been in Australia, he stated that he doesn’t have money to send back. The Tribunal observed the applicant had arrived in Australia in 2014 and asked what work he had done since then and he stated that he only got the farm work a few months ago. Before that he was helping his sister and [her children] with housework. He stated that he does not have a bank account in Australia and has not received any other payments or financial support since he has arrived in Australia. The Tribunal observed it was having difficulty accepting the applicant had been in Australia for eight years and had not had any employment or other way of supporting himself and he stated that he wants to work but they do not hire him.
The applicant stated that he fears harm in Vietnam from the people he owes money to, who would hire underground people and would cut his ear off. The Tribunal asked how these people could find him if he returned and lived in an area away from Saigon, such as in the north of Vietnam. The applicant stated that wherever you go in Vietnam, there is surveillance.
The Tribunal observed that the applicant had arrived in Australia in October 2014 but had not claimed protection until December 2016. The applicant stated that he didn’t know any English and his [sister’s children] were studying. The Tribunal observed that the applicant’s delay in claiming protection caused the Tribunal to doubt that he had left Vietnam for the reasons he claimed or that he feared returning for the reasons he claimed, on the basis that it was having difficulty accepting the applicant would not claim protection for over two years if he was in such fear of a lender. The applicant stated that he doesn’t know a lot of English and he heard from other people and that is why he applied. He stated that from 2014 until 2016 he was ‘staying at home’, that he had arrived on a visitor visa but that he does not know when this expired.
The Tribunal observed that, in addition to the delay in claiming protection, the applicant’s delay in leaving Vietnam also caused doubt for the Tribunal that he was threatened by a loan shark or anyone he had borrowed money from. The applicant stated in response that there is a loan shark.
The Tribunal observed that the applicant had been unable to tell the Tribunal [Mr A’s] full name despite having given evidence that he had known him from 1994 onwards, had not been able to tell the Tribunal the address of his business that he claims to have run for two years and had had difficulty describing to the Tribunal what tools and equipment he had needed to run his business. The Tribunal observed that these matters caused the Tribunal to doubt that the applicant had run [an occupation 1] business in Vietnam or that he had needed to borrow money to run a business in Vietnam. The applicant stated in response that he is saying what really happened.

The Tribunal observed that the applicant had also been unable to remember or describe the building where he claims to have obtained the loan, to which the applicant stated that he remembers it was in an alley but it is hard to describe. The Tribunal also observed that the applicant had been in Australia for eight years but had not organised to have a copy of the loan contract sent to him, which the Tribunal would expect he would be able to provide in support of his claims. The applicant stated in response that when he left, all of his paperwork was left at home. His mother passed away and he ‘didn’t pay attention’.
The Tribunal observed that country information indicated that the applicant could return and live in another area of Vietnam which would reduce any risk to him from an individual he claims he owes money to.[2] The Tribunal raised the above concerns about the applicant’s evidence with the applicant at hearing. Following the hearing, the applicant’s representative submitted that the applicant had not been able to answer the Tribunal’s questions properly at hearing due to his poor education and nervousness. In relation to specific answers given by the applicant at hearing, the representative submitted that:
·The applicant had known [Mr A] since 1994 and they used to work together as [an occupation 1s] for many years and jointly owned [an occupation 1] shop in Ho Chi Minh City. The applicant had stated at hearing that [Mr A’s] name was ‘[Mr A full name]’ but this had not been interpreted by the interpreter;
·Regarding the address of the [shop], the representative submitted that the applicant left Vietnam eight years ago and had heard that the street where the [shop] was opened had now changed and he does not know the new one;
·The applicant was able to list a number of tools at the hearing but could not remember all of them due to nervousness;
·The applicant had been unable to described to the Tribunal the building where he obtained the loan because it was located in an alley off the main street in District 3, Ho Chi Minh City;
·There was no formal loan, just a piece of paper on which the lender noted down the amount of the loan and the timeframe to repay the loan. The applicant had given the paper to his mother who has now passed away and it is not possible to find the paper;
·The applicant borrowed [amount] dong to open the [occupation 1] shop with [Mr A] and was able to repay instalments for the first few months. The business failed and the applicant was unable to repay the loan. The ‘gangs’ threatened to harm him but he did not leave Vietnam because he thought he could work harder to save the business. He failed and decided to leave the country;
·When the applicant arrived in 2014, he stayed with his sister and depended on her financially and for accommodation. He mainly stayed home to do house chores and his contact with outsiders was very limited due to the new environment and language barriers. This is why he had not applied for protection ‘until he was told by a friend’;
·The applicant fears returning to Vietnam because he borrowed [amount] dong from loan sharks to jointly open [an occupation 1] shop with [Mr A] in 2012, the business failed and the loan has increased significantly due to high interest charged, the loan sharks hired gangs to threaten the applicant while he was in Vietnam and continue to threaten him, and if he returns home the authorities will not protect him and if he relocates, the gangs will find him through their networks.
[2] DFAT Country Information Report, Vietnam, 11 January 2022 at 3.107.
In assessing the applicant’s claims for protection, the Tribunal has adopted a ‘reasonable approach’ and accepts the principle that, if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[3] However, the benefit of the doubt should only be given where all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[4]
[3] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, para 196.
[4] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, para 204.
The Tribunal is mindful of the difficulties faced by applicants, including nervousness and anxiety in a Tribunal environment and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time between the claimed events and the Tribunal hearing, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, in line with the Tribunal’s Guidelines on the Assessment of Credibility, in the conduct of the hearing and in assessing the applicant’s evidence as a whole.
The applicant’s inability to provide the Tribunal with details relating to the work he claims to have undertaken in Vietnam causes doubt for the Tribunal that he ran a business in Vietnam for which he needed to borrow money. The applicant was unable to describe to the Tribunal the address of the business or many of the tools used for the business. The Tribunal would expect that, if the applicant had undertaken training in [occupation 1] in 1994 and had worked in that industry, including in running his own business for two years from 2012 to 2014, that he would be able to describe spontaneously and in some detail the tools he had required for the business. The Tribunal would also expect that the applicant would have been able to provide the address he ran the business at for two years, if he had run [an occupation 1] business in Vietnam as he claims. The explanation given by the applicant’s representative following the hearing that the applicant has had a poor education and was nervous at the hearing does not alleviate the Tribunal’s concerns about this part of the applicant’s evidence. Further, the explanation given by the applicant’s representative that the address of the applicant’s business has changed does not explain why the applicant was unable to provide the address the business was located at, at the time the applicant was running the business.
The applicant’s inability to describe to the Tribunal where he went to obtain a loan address further doubt for the Tribunal that he loaned money from a loan shark in Vietnam or that he left Vietnam for the reasons he claims. The applicant’s representative’s explanation to the Tribunal following the hearing that the applicant was unable to describe the building because it was in an alley, or that the applicant had a poor education and was nervous, does not alleviate the concerns the Tribunal has about the credibility of the applicant’s claimed experiences in Vietnam.
The applicant’s delay in leaving Vietnam causes further doubt for the Tribunal about the credibility of his claims. The applicant claims to have borrowed money from a loan shark in January 2012 and to have ceased making repayments to the loan shark four months later. The applicant was able to remain in Vietnam for over two years after he claims to have defaulted on a loan to a loan shark. The applicant’s response to the Tribunal’s concern about his delay in leaving Vietnam was that ‘there is a loan shark’. This explanation, or the representative’s submission that the applicant had a poor education and was nervous at the hearing or that he was working harder to save the business, does not alleviate the concerns the Tribunal has about the significant amount of time the applicant remained in Vietnam before leaving for Australia. This delay causes the Tribunal to doubt that the applicant left Vietnam because he was receiving threats every few months from a loan shark, or that he fears returning to Vietnam for the reasons he claims.
The applicant’s delay in applying for protection after he arrived in Australia causes further doubt for the Tribunal about his claims. The applicant stated to the Tribunal that he was largely at home at his sister’s address. Even allowing for the applicant’s poor English and low level of education, the Tribunal considers it implausible that, if the applicant had been threatened as he claims or if his wife continued to be threatened every couple of months as he claims after he had left Vietnam, the applicant would not pursue an avenue to remain in Australia legally and would not obtain work for a significant period of time in Australia to be able to make repayments towards a loan. The significant delay in claiming protection causes further doubt for the Tribunal that the applicant left Vietnam after borrowing money from a loan shark that he was unable to repay or that he fears returning to Vietnam because of a loan shark.
For the reasons set out above, the Tribunal does not accept that the applicant ran a business with ‘[Mr A]’ for two years or that he borrowed money from a loan shark in or around January 2012 which he was required to repay at a rate of [amount] dong per month. The Tribunal does not accept that the applicant was threatened in Vietnam by a loan shark every few months or that a loan shark threatened to cut the applicant’s finger or ears. The Tribunal does not accept that a loan shark attends the applicant’s house every two to three months to make threats to his wife.
The Tribunal finds that, if he returns to Vietnam now or in the reasonably foreseeable future, there is not a real chance the applicant faces serious harm from a loan shark. The Tribunal is not satisfied the applicant faces a real chance of persecution or any reason if he returns to Vietnam now or in the reasonably foreseeable future.
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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
For the same reasons as those set out above, the Tribunal is not satisfied there is a real risk the applicant faces significant harm if removed from Australia to Vietnam.
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 criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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 3777

9 September 2022

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