1801100 (Refugee)

[2024] AATA 3325

1801100 (Refugee) [2024] AATA 3325 (9 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Duc-Dung Tran (MARN: 0319577)

CASE NUMBER:  1801100 and 1801101

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:9 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first applicant and the second applicant protection visas.

Statement made on 09 August 2024 at 4:08pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – threats from money lender – fear of violence – fear of killing – home demolished without adequate compensation – economic conditions – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Vietnam, applied for the visa on 21 October 2016. The delegate refused to grant the visa on the basis that the applicants were not persons to whom Australia owed protection obligations.

3. The first applicant applied to the Tribunal for review of the delegate’s decision on 15 January 2018 (AAT File reference 1801100).

4. The second applicant made a separate application to the Tribunal for review of the delegate’s decision on 15 January 2018 (AAT File reference 1801101).

5. The applicants appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicants were represented in relation to the review and the applicant’s representative assisted the applicants at the hearing.

6. The applicants consented to the Tribunal holding a combined hearing and to a combined decision. The Tribunal received oral evidence from the first applicant’s father, [Father A] by telephone from Vietnam.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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 at the end of this decision.

11. 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 at the end of this decision.

    Mandatory considerations

12. 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.

    CLAIMS AND EVIDENCE

    Country of nationality

13. The applicants travelled to Australia on apparently genuine Vietnamese passports, copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Vietnam and have been assessed on that basis by the Department. The Tribunal finds the applicants are Vietnamese citizens and has assessed their claims against Vietnam as the country of nationality and the ‘receiving country’ for the purposes of s.5(1).

    Background

14. The first applicant is [an age] year-old male born in Binh Dinh, Vietnam. He has [siblings] and his father living in Vietnam. His mother passed away in 2019.

15. The second applicant is [an age] year-old female born in Binh Dinh, Vietnam. She has [siblings] and her mother living in Vietnam. Her father passed away in 2021. She also has one sister in Australia, who sponsored her and the first applicant to travel to Australia on a Sponsored Visitor visa in 2012.

16. The applicants have [specified children], born in [specified years]. The applicant’s children remained living in Vietnam with the first applicant’s parents when they travelled to Australia. After the first applicant’s mother passed away in 2019, they have lived with his father.  One [child] is completing [grade] and [another] is at University in Vietnam. The first and second applicants said that they regularly send money to Vietnam to support their [children] and their education.

17. The applicants were married in Vietnam [in] January 2004 and lived with the first applicant’s parents, together with their [children], until they travelled to Australia in 2012. In the first applicant’s supporting statement provided to the Tribunal and supported by evidence of the applicants at hearing, they said that the family home where they lived was acquired by the authorities in Vietnam in 2007 and demolished. The family were given a smaller block of land and an amount of compensation which the applicants said did not reflect the true value of the property. The applicants gave evidence that they were without a home until the family were able to rebuild a new house a few years later. The applicants gave evidence that they were living in this house with the first applicant’s parents and their [children] before travelling to Australia in 2012. The first applicant’s father and their [children] continue to live at this property.

18. At hearing, the first applicant gave evidence that he completed up to [grade] of High School and then worked in his family [business] with his two [relatives] until approximately 2009 when [their equipment was] sold as the business was not financially viable. The first applicant gave evidence that in 2010 he took out a loan to pay outstanding business expenses and living costs. He said that the loan was for $[amount] Vietnamese Dollars and that interest on the loan was $[amount] Vietnamese Dollars per month. He gave evidence and provided a loan agreement stating that the loan was owed to a man from their local village known as [Mr A]. Since 2010, the first applicant said that they have repaid approximately $[amount] Vietnamese Dollars in addition to paying the agreed monthly interest payment from 2010 until now.

19. The first applicant and the second applicant gave evidence that they came to Australia as visitors and intended to ask the second applicant’s sister for money to help them pay their loan in Vietnam. They said that they remained in Australia to work and send money back to Vietnam to repay the loan and support their families.

20. The first applicant said that most recently he has worked in Australia as [an occupation 1] for approximately the last 2 years and regularly sends money back to his father in Vietnam to make payments on the loan and to support his [children]. The second applicant gave evidence that she has most recently been working in Australia [specified duties] and also contributes to the loan and to support their [children] in Vietnam. The second applicant said that she works 5 days per week but due to a medical condition she may only be able to works 6 hours per day. She said her husband also has a [medical condition] which means he can only work 3 to 4 days per week.

21. The applicants travelled to Australia on a [Visitor] visa [in] March 2012 valid for stay until [April] 2012. They remained in Australia without a visa following the expiry of that visa.  On 21 October 2016, they applied for a Subclass 866 Protection visa and have remained in Australia on a Bridging Visa pending the processing of the visa application and the present review application until now. The protection visa application was refused by the delegate on 10 January 2018.

22. The Tribunal accepts the above matters to be true.

    Protection Visa

23. In the protection visa application, the first and second applicant’s claims were provided separately but were identical. In summary, they claimed that they were facing financial difficulties in Vietnam and took out a loan which they could not repay and feared that on return to Vietnam they would be caught by creditors and that they could be beaten, injured or killed. They claim that the authorities will not protect them as it is a personal economic issue.

24. In response to a question in the protection visa application form, it was stated that they had both suffered discrimination for being a Taiwanese woman. The applicants have at all times claimed to be Vietnamese nationals and presented Vietnamese passports.  There is no evidence before the Tribunal to indicate that they are Taiwanese nationals or Taiwanese women. Asked if there were any other matters they wanted to raise, they did not further advance claims to be Taiwanese women. Based on the evidence provided, the Tribunal finds that the applicants will not face discrimination as Taiwanese women.  Therefore, the Tribunal finds that the applicants do not face a real chance of serious harm or a real risk of significant harm for reason of discrimination as Taiwanese women on return to Vietnam, now or in the foreseeable future.

25. The delegate refused the applicants a protection visa on 10 January 2018 on the basis that they were not persons to whom Australia owed protection obligations.

    Review Application

26. The applicants lodged separate review applications in respect of the delegate’s decision on 15 January 2018.

27. On 5 March 2024 the Tribunal wrote separately to the applicants inviting them to attend a hearing on 11 April 2024. On 13 March 2024, the applicants provided separate hearing responses through their representative which indicated that they were awaiting a copy of the file documents and on 8 April 2024 a joint updated response to hearing form was received. The updated Response to Hearing Invitation confirmed that the applicants would both provide oral evidence and requested the Tribunal take evidence from the first applicant’s father, [Father A], by telephone from Vietnam. The Tribunal received the following supporting documents in respect of both review applications:

    ·Statement of the [first applicant], dated 1 April 2024 and English translation.

    ·Witness Statement titled ‘Petition to the Australian Government’ of the first applicant’s father, [Father A] and English translation.

    ·Witness Statement titled ‘Report to the authorities’ of the first applicant’s father, [Father A] and English translation.

    ·Loan Agreement of the first and second applicant, and [Mr A], dated 9 April 2010 and English translation.

28. The applicants appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the first applicant’s father, [Father A]. The applicants were assisted at the hearing by their representative.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Analysis, Findings and Reasons

29. The issue in this case is whether the applicants are persons 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Loan owing in Vietnam

30. The applicants claim that on return to Vietnam they will face harm from a moneylender who they borrowed money from in Vietnam in 2010. The applicants have provided the Tribunal with supporting documents and evidence at hearing regarding the amount of the loan, terms of the loan and the monthly payment amount.  At hearing, the first applicant confirmed the loan details and that it was owed to man named [Mr A] who lived in their village in Vietnam. The details of the loan were also confirmed in oral evidence given to the Tribunal by the second applicant, and the first applicant’s father, who told the Tribunal that he was responsible for making the monthly payments to [Mr A] in Vietnam. The Tribunal accepts that the applicants took out a loan from a man who lived in the same village as the applicants known as [Mr A] in 2010. The Tribunal accepts that the initial loan was for $[amount] million Vietnamese Dollars and that the monthly interest payments agreed were $[amount] Vietnamese Dollars.

31. The applicants and the first applicant’s father gave evidence that they had been able to meet the monthly repayments since taking out the loan in 2010 until present although said that there were a few occasions when payments were late, including, a recent time when the second applicant had to undergo a medical operation in November 2023 and was unable to work and send money. In his written report to authorities provided to the Tribunal, the first applicant’s father stated that the family paid the loan repayments on this occasion. The applicants also gave evidence about a further time in 2018 when they were unable to send money to Vietnam because the second applicant became unwell when [their child] passed away. The first applicant said that there had been occasions they have been late with payments but that they had never missed a payment. The applicants gave evidence that they have been able to repay approximately $[amount] Vietnamese Dollars towards the principal of the loan as well as make the monthly interest payments over the period from 2010 to the present time.

32. The Tribunal finds that the applicants have been able to make the monthly payments of $[amount] Vietnamese Dollars over a period of approximately 14 years from 2010 to the present time, and that in addition to the monthly payments they have been able to repay approximately $[amount] Vietnamese Dollars such that the balance owing to [Mr A] has been reduced to $[amount] Vietnamese Dollars.

33. The first applicant’s father gave evidence that he receives the money sent by the applicants from persons travelling from Australia to Vietnam and pays [Mr A] the monthly loan repayments. The first applicant’s father said that he pays [Mr A] at the start of each month. He said that [Mr A] lives in the same area as the family and that sometimes [Mr A] comes to his house and sometimes he goes to [Mr A’s] house to pay the monthly loan repayments. Asked if [Mr A] has ever harmed or threatened him or his family with harm, he said that he makes demands and harasses him to pay at the start of each month and that when they did not pay on time in November 2023, [Mr A] came to his house and made verbal threats to recover the payments by taking the family property. He said that the estimated value of the family property is $[amount range] Vietnamese Dollars.

34. In their protection visa application, the applicants claimed that they feared harm from the moneylender on return to Vietnam and in the written statement provided to the Tribunal, the first applicant claimed that their family in Vietnam had been threatened and attacked and that the creditor wanted to destroy his house. At hearing, the Tribunal asked the applicants for further details about what they feared would happen if they did not make the monthly payment on the loan on return to Vietnam. The second applicant said that she feared that [Mr A] may take the property or insult them.  The first applicant said that he also feared they would have to use the property to pay for the loan. The applicants both also gave evidence of an incident before they left Vietnam in 2012 that he once slapped the first applicants face when he was late with payments. In his oral submissions to the Tribunal, the applicant’s representative reiterated the applicants fear of harassment and being slapped on the face on return to Vietnam.

35. The Tribunal is willing to accept the applicant’s evidence that [Mr A] had once slapped the first applicant on his face during an altercation in approximately 2010 or 2011. However, when considered against evidence of [Mr A’s] actions since 2012 to recover the loan payments from the first applicant’s father every month, including when the applicants have been late making payments, the Tribunal does not accept that the previous isolated incident supports a conclusion after such a long period that the applicants will face harm from [Mr A] on return to Vietnam. 

36. Further, the Tribunal discussed with the applicants that relevant country information also suggests that the authorities in Vietnam have recognised the seriousness of illegal moneylending and demonstrated a willingness to tackle the activities of illegal moneylenders[1] and are prosecuting offenders.[2]  The applicant told the Tribunal that they reported it to the authorities in approximately 2010 or 2011 and they would not assist because it is a personal economic matter. The Tribunal accepts that there may have been a reluctance of authorities to become involved in moneylending activities in 2010 or 2011 when the applicant claims to have reported the arrangement, however, finds that the recent country information referred to above indicates action would be taken by the authorities if the arrangement was found to be illegal and there is written evidence of the loan which could be presented as evidence of the terms of the loan in the absence of which it can be difficult for authorities to take action.[3]

    [1] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, p.24.

    [2] 'Protect workers from loan sharks: PM', VNExpress, 12 June 2022.

    [3] DFAT Country Information Report Vietnam, 11 January 2022 at 3.103.

1. In assessing the risk of harm to the applicants from [Mr A] or any other person for reason of the outstanding loan, the Tribunal also raised with the applicants that DFAT reports there is a potential for retaliation from moneylenders, however, it may take different forms such as harassment, public embarrassment to more serious violence.[4] In the present case, the Tribunal notes that the only previous incident of violence claimed by the first applicant or his family was in 2010 or 2011 when the first applicant claims [Mr A] slapped him on the face. Otherwise, the applicants and his father gave evidence that the moneylender has requested monthly payments or threatened to enforce the term of the loan agreement by taking possession of the family property. The first applicant responded and said that he would like to seek leniency to stay so that he could save money or he would suffer significant harm in Vietnam. Based on the evidence provided, the Tribunal finds that the applicants may face requests for payment or action to acquire their property to pay the loan as per the agreement they entered into with [Mr A]. However, the Tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicants for reason of their outstanding loan from [Mr A] or any other person on return to Vietnam, now or in the foreseeable future.

   Financial circumstances

   [4] DFAT Country Information Report Vietnam, 11 January 2022 at 3.104.

2. The applicants claim that they will face financial difficulties on return to Vietnam and be unable to repay the loan to [Mr A]. The Tribunal gives weight to evidence that the applicants have the support of relatives in Vietnam, that they have accommodation with the applicant’s father at their previous family home, the minimum loan payment amount per month is $[amount] Vietnamese Dollars and that they will be able to utilise their skills and experience, including previously operating a [business] in Vietnam and working over a number of years in Australia, to find employment or establish a business and make the required monthly payments. The Tribunal notes that the second applicant gave evidence that she may operate a small [business 1] on return to Vietnam and the first applicant said it would be difficult to make money [in their business] or as [an occupation 1] in Vietnam, so he would likely find employment in a lower paid service industry. The Tribunal also discussed DFAT reports of the economic conditions in Vietnam describing low unemployment of 2.4%, that the economy continues to grow and that poverty has been significantly reduced to less than 6%.[5] In response, the applicants stated that they consider Australia their second homeland, they are connected to Australia because their [child] had passed away in Australia and they want to contribute in Australia. The applicant’s representative also made oral submissions that there are differences in economic conditions in Vietnam in the cities compared to the rural areas where it is more difficult to find employment, however, the Tribunal considers that it would be open to the applicants to relocate to the city if they were unable to find work to support themselves and pay their loan while living in their previous home village. The applicants representative also referred the Tribunal to the statement of the applicant where it was stated that persons can be arrested without any reason and highlighted disparities in treatment between rich and poor people in Vietnam. The Tribunal notes that the applicants did not make any claims to fear being arrested on return to Vietnam. In respect of poor persons in Vietnam, the Tribunal discussed with the applicants DFAT reports that there is limited social welfare support for the poor in Vietnam and that even if an applicant is eligible to social welfare the amount they would receive would be unlikely to sustain them without other means of support[6].  However, as noted above, the Tribunal considers that the applicants have access to accommodation, family support, as well as employment opportunities on return to Vietnam.

   [5] DFAT Country Information Report Vietnam, 11 January 2022 at 2.5 to 2.6.

   [6] DFAT Country Information Report Vietnam, 11 January 2022 at 2.9.

3. The Tribunal accepts that the income earning capacity of the applicants would be reduced on return to Vietnam compared to the amount they are earning in Australia, however, for the above reasons finds that the applicants will be able to find employment, and have the support of family to meet the monthly repayments on the loan or make payments towards the principal amount of the loan, on return to Vietnam, now or in the foreseeable future. Therefore, the Tribunal finds that the applicants do not face a real chance of serious harm or a real risk of significant harm for reason of them being unable to repay the loan, from [Mr A] or from any other persons, on return to Vietnam, now or in the foreseeable future.

   Health conditions

4. The applicants also claimed at hearing that they had health conditions which may affect their ability to work and repay the loan. The second applicant also said she would have to pay for medical treatment in Vietnam. The Tribunal accepts that the second applicant has had two medical incidents that have caused her to be unable to work for a period of time in 2018 and most recently when she had an operation in November 2023. However, the second applicant gave evidence at hearing that she was working 5 days per week [duties specified] at the time of the hearing and that on return to Vietnam she would be able to work in a [business 1]. The second applicant also said that she has an ongoing medical condition, however, she gave evidence that this reduces the number of hours per day she can work to approximately 6 hours, not prevents her from working. She gave evidence that she had been able to work with this medical condition in Australia. The Tribunal has also considered evidence that the first applicant has a medical condition impacting the number of days he can work, however, finds that it does not prevent him from working altogether as most recently the first applicant gave evidence that he has been working as [an occupation 1] for the last 2 years.  Based on the evidence provided, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicants for reason of their health conditions causing them to be unable to work and repay the loan or to pay for medical treatment, on return to Vietnam now or in the foreseeable future.

   Land acquisition

5. In the supporting statement of the first applicant lodged with the Tribunal prior to the hearing and in oral evidence, the applicants claimed that their family property in Vietnam was subject to acquisition and demolition by the Vietnamese Government in 2007. The Tribunal is willing to accept the applicant’s evidence that the family home where they lived was acquired and demolished by the authorities in Vietnam in 2007. The Tribunal also accepts that they were without a home for a period of years as a result. However, the applicants gave evidence that they were able to rebuild a family home in Vietnam, where they lived with the first applicant’s parents and their [children] prior to travelling to Australia in 2012, and where the family still live at the present time. The Tribunal finds that the land acquisition in 2007 would therefore not impact on them on return to Vietnam now or in the foreseeable future. The Tribunal also notes that the applicants and the first applicant’s father gave evidence that they took out the loan to [Mr A] to meet the business expenses associated with their [business] in 2010, and finds that the loan was not associated with the land acquisition or rebuilding of their house. Further, the applicants did not claim to have been involved in any anti-government protests related to the compulsory acquisition of land. Based on the evidence provided, the Tribunal finds that the applicants do not face a real chance of serious harm or a real risk of significant harm for reason of the acquisition and demolition of their property in 2007, on return to Vietnam now or in the foreseeable future. 

   Conclusions

6. For the above reasons, and having considered the applicants claims individually and cumulatively, the Tribunal finds that there is no real chance that the applicants will face serious harm on return to Vietnam for the reason of their race, religion, nationality, political opinion, membership of any particular social group or any other reason. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution for the purposes of s5J of the Act.  Therefore, the Tribunal finds that the applicants are not refugees for the purposes of s.5H(1) and that the applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(a).

7. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that they will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer arbitrary deprivation of their life or the death penalty. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

8. There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s 36(2).

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Melissa Haag
   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.

   …