1801562 (Refugee)

1801562 (Refugee) [2024] AATA 1272 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801562
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Catherine Wall
DATE:20 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2024 at 11:15am
CATCHWORDS
REFUGEE – protection visa – Vietnam – economic hardship and inability to repay money borrowed from relatives – threats and fear of harm – distrust of authorities – new claim of borrowing from money lenders for business – assaults but no significant injuries – participation in environmental protest with no repercussions – employment history, large repayment, passage of time and no further contact with lenders – partner with visa application in progress and Australian-born child – generally consistent and credible evidence – country information – corruption falling but key concern – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
BBK15 v MIBP (2016) 241 FCR 150
Chan v MIEA (1989) 169 CLR 379
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
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 19 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act)
The applicant is a [Age] year old citizen of Vietnam. He arrived in Australia [in] April 2017 and applied for the protection visa on 28 June 2017. The applicant stated in his visa application that he left Vietnam because he was unable to repay money he borrowed from relatives and he feared harm if he returns to Vietnam. He also claimed that he will face economic hardship in Vietnam.
The delegate refused to grant the visa on the basis that the applicant can access protection from the state and he could obtain employment upon return to enable him to support himself. The applicant applied for review of that decision on 22 January 2018.
The applicant attended a Tribunal hearing on 8 February 2024. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal was satisfied that he was able to communicate effectively in the hearing.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
I left Vietnam because of distrust of the judiciary and law enforcement, poor system of government and bureaucracy. Poverty and unemployment are still big due to the global economic impact. Due to such problems I have been living in harsh conditions so I had to borrow money from my relatives.
I could not repay the debt and lived in mental distress and fear. Many people in Vietnam have problems like me and cannot repay and are hit, injured and killed. I chose Australia to live a better life.
If I return to my country I will get caught by creditors and could be beaten, injured or killed as they will be searching for me.
I have experienced harm in that country because I was verbally threatened and I lived in hardship because of the bad economy.
I cannot seek help from the authorities as it is a matter of the poor economy and this is considered a personal problem.
I did not try to relocate because the poor economic conditions are everywhere in the country.
If I return I will live in harsh conditions and suffer discrimination for Taiwanese women.
The applicant was invited to submit further information before the hearing but no further submissions were received.
Evidence at the hearing
The applicant’s evidence was that he was born in Hue City and has [siblings], one of whom is deceased. His father died when he was [age] years old and his mother is living. He has [sisters] who live in Melbourne and are Australian citizens, while the remainder of his family live in Vietnam.
The applicant said that he left school when he was [age] years and a few years later decided to open a [business]. The business struggled so he borrowed 1.4 billion VND[1] from a loan shark at an interest rate of 12% per month. He said that he initially made interest only repayments of 170 million VND.[2] He claimed that a friend introduced him to the lenders but he never knew their identity because it is a black market. They would phone him each month to advise when they would visit the [business] to collect the money. He managed to make a few repayments but could not pay any more as his business was not going well.
[1] Equivalent to approximately $88,000 AUD.
[2] Equivalent to approximately $10,700 AUD
The Tribunal heard that the lenders went to his house and took all the valuable assets in the house. He was living with his parents so they became aware of the debt when this happened. His parents gave him a few hundred million VND to help with the debt but they couldn’t afford any more. He said that the lenders told him to sell the house so he could repay them but he told them that this was not possible as his parents owned the house. He told them that he would get a job and repay them over time. He closed the [business] and secured a job at a [Workplace] managing the [facilities] which were used for [a Job task]. He kept paying the lenders each month and they were happy with that.
I asked the applicant why he didn’t continue with these payment arrangements. He said that his salary only enabled him to make repayments which covered a portion of the interest and he knew he would never be able to settle the debt. He worked a second job as [an Occupation] but that didn’t help much. He felt that the situation was hopeless so he decided to move to Australia to escape the problem.
When I asked if he was harmed at any time by the lenders, the applicant said that they smacked him in the face and punched his body which resulted in bruises but no significant injuries. He said that he was hit on so many occasions that he lost count, and always at his house. He did not report this to the police as the authorities don’t want to get involved and he was concerned that the lenders might punch him more if he reported them.
The applicant took the loan in 2012 and travelled to Australia in 2017. He said that all these things happened over those 5 years. I observed that 1.4 billion VND is a large sum to borrow, and his response was that it was a very large [business]. He said that the lenders never threatened or hurt his family.
The applicant said that, while working at the [Workplace], he was able to lease a few of the [facilities]. In 2016 the [facilities] were significantly affected by the Formosa Disaster, when the Taiwanese steel plant Formosa Plastics discharged toxic waste into the ocean, resulting in mass fish deaths.
He participated in a demonstration against the Formosa incident. He said that he is not sure if the government was involved with Formosa but police intervened in the demonstration. He managed to run away but his friend got caught and was warned by the police. He believes that participants in the demonstration are watched as people cannot voice their opinion on issues like Formosa. He received a small amount of compensation [but] he said it was not a fair outcome.
When the applicant arrived in Australia he lived with his sisters and worked in [a factory]. He met his partner ([Ms A]) in Australia and they have a [age] year old daughter. His partner is not currently an Australian resident or citizen. He said that her mother is sponsoring her for a [Specified] visa.
I sought to clarify how much of the debt the applicant has repaid to date. He said that his [sister] in Vietnam told him to make repayments from Australia, so about 6 months ago he repaid $40,000 AUD. He said he thought that, if he cannot remain in Australia, he doesn’t want to return to Vietnam with the fear of retribution from the loan shark. His view is that he has repaid about 3-4 billion VND[3] which he believes should be enough. He has had no contact at all from the loan shark since he has been in Australia and they have not contacted or threatened his family in Vietnam during that time.
[3] 3 billion VND is equivalent to approximately $188,000 AUD.
I told the applicant that I had a number of concerns with his claims and I would discuss these with him and give him the opportunity to respond.
In relation to the debt to the loan shark, I put to the applicant that he appears to have repaid his debt and therefore should not face any threats or harm if he returns to Vietnam. He said that he is not so sure about this as the loan sharks might demand further payment as 6 years of compound interest amounts to a large amount. He also said that he would find it hard to secure employment in Vietnam and he would be under pressure again. He said that his partner and his daughter need him here to care for them.
I raised the option of relocating within Vietnam if the applicant is concerned about the loan sharks, however he expressed the view that loan sharks can find him anywhere as they have significant connections. I also discussed the option of seeking protection from the authorities if he fears harm however he did not accept that the police will not protect him.
In relation to the poor employment opportunities in Vietnam, I observed that the applicant appears to be well placed to secure work in Vietnam as he had been employed at the [Workplace] in Vietnam and has been working in Australia where he has developed further skills. He said that he is not sure about this. He again expressed concern about his partner and daughter not having his financial and emotional support if he returns to Vietnam.
I noted that he had made claims in his visa application about his distrust of the government, policy and judiciary. I asked if he had experienced any harm from the authorities. He said that it would be very difficult to return to where he lived and he would face difficulty with the authorities. When asked for specific details about this potential harm, he only referred to the problems with the Formosa incident. He said that he has only ever demonstrated once, which was about Formosa, but he is concerned about what might happen to him because of his participation in the demonstration.
I discussed with the applicant a number of inconsistencies between details in his visa application and his oral evidence. In the application he said that he borrowed the money from relatives. The applicant said this was not true as he borrowed from a loan shark. In the visa application he listed his family members, including 2 daughters, one of whom was older than him and one which shared his date of birth. He advised that this was incorrect and that these errors resulted from a friend filling in the form on his behalf. The Tribunal accepts that the reference to discrimination as a Taiwanese women is also an error.
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.
Refugee criteria
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan v MIEA (1989) 169 CLR 379.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)). 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.
Complementary protection criteria
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. ‘Significant harm’ is exclusively defined in s.36(2A) as follows:
(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.
Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s36(2)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province
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.
The current Department of Foreign Affairs and Trade (DFAT) report is the Country Information Report Vietnam dated 11 January 2022.
CONSIDERATION
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[4]
Identity
[4] (1999) 197 CLR 510.
The applicant’s nationality is not an issue. He travelled to Australia on a valid Vietnamese passport and has consistently stated in documentation that he is a national of Vietnam. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Vietnam and I have assessed his claims against Vietnam as his receiving country.
Does the applicant meet the refugee criteria?
Threat from loan shark
I found the applicant’s evidence about his experiences in Vietnam to be generally consistent and credible. I consider the amount of the loan to be unusually high, particularly considering that he was a young man starting a business for the first time. Nevertheless I am willing to accept this given that I am satisfied that his account of the loan and subsequent activities is otherwise plausible. I also find that the incorrect information in the visa application results from the applicant’s friend completing the form for him and his inability to verify the information because of his limited English. I give these inconsistencies no weight.
I accept that the applicant borrowed money from a loan shark and was unable to repay the debt.
I accept that the loan sharks threatened him and attacked him on several occasions.
I accept that the applicant obtained work at a [Workplace] and took a second job as [an Occupation] in order to attempt to repay the debt but his income was insufficient to make the repayments required.
I accept that he travelled to Australia because he despaired that he could ever repay the loan and he was living in fear of the repercussions.

I give significant weight to the applicant’s evidence that he recently made a large repayment to the loan shark because he does not want to face threats if he is required to return to Vietnam. I also give weight to his evidence that he believes he has repaid ‘enough’ of the debt, having borrowed 1.4 billion VND and repaid 3-4 billion VND. I have considered his claim that he could still face problems from the loan sharks if he returns to Vietnam because of the compounding interest. I am not satisfied, however, that this is the case. It is over 10 years since he borrowed the money, he has repaid more than double the amount he borrowed, the loan sharks have not contacted him while he has been in Australia and they have not contacted his family since he left the country.
For the reasons given, I am not satisfied that the applicant faces a real chance of serious harm for reasons of having a debt from a loan shark, should he return to Vietnam now or in the foreseeable future.
Inability to speak out, mistrust of the authorities
I accept that the applicant experienced loss of income when Formosa discharged toxic waste into the ocean and that he participated in a demonstration as a result of his dissatisfaction with the incident and consequences. I accept that the applicant objects to a number of aspects of Vietnamese life, particularly the level of corruption and freedom of expression. He does not trust the authorities and resents his inability to openly criticise the government without fear of reprise. I referred the applicant to the DFAT report which acknowledges that there is a level of corruption in the police, the judiciary and the government in Vietnam. I explained to the applicant that the issue before me however is whether this amounts to serious or significant harm if he returns to Vietnam.
Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but that corruption is a key concern of everyday Vietnamese people.[5] The applicant did not provide any instances of harm that he has experienced because of corruption, and he did not assert that the Formosa Incident was linked to government corruption. He objects to what he considers to be an inability to voice his views publicly however he did not claim that he has criticised the authorities or that he had experienced threats or harm as a result of demonstrating against Formosa. It appears that he has only expressed his objections once, at a demonstration, and that was a response to the Formosa incident when he did not suffer any repercussions. I have considered his evidence that his friend was caught by authorities at the demonstration against Formosa and was warned. I acknowledge that this scared the applicant and added to his distrust of the authorities.
[5] DFAT Country Information Report Vietnam (2022) 2.11
I am not satisfied that the Vietnamese authorities will monitor the applicant or take any action against the applicant because he attended one demonstration 7 years ago. He was not questioned or detained by the police during the protest and was not approached by authorities after the protest. He was able to leave the country without difficulty therefore I find that he does not have a profile as an activist or an opponent of the government. Accordingly, I am not satisfied the applicant faces a real chance of serious harm as a result of having attended a demonstration in 2016 should he return to Vietnam now or in the foreseeable future.
Poor economic conditions
I have considered the applicant’s claim that he may face unemployment and financial difficulty upon return to Vietnam. Country information indicates that the Vietnamese economy continues to grow and has strong growth potential, with 2.9% growth in 2020 despite the COVID 19 pandemic. This is reflected in a growing middle class and increasing urbanisation.[6] Vietnam has become a popular destination for manufacturing and the services sector has become the largest part of the economy at about 50% of GDP. While I acknowledge that wages and the standard of living is generally lower in Vietnam than in Australia, I am satisfied that he is likely to find employment upon return. He is a young and healthy man who was able to secure employment while living in Vietnam and he has acquired additional skills while working in Australia. Given his experience and proven motivation for work, I find that he will not be denied the capacity to earn a living, nor would he be denied basic services where such denials would threaten his capacity to subsist: s 5J(5). Accordingly, I am not satisfied that the applicant faces a real chance of serious harm if he is returned to Vietnam by reason of his economic circumstances.
[6] DFAT Country Information Report Vietnam (2022) 2.5-2.7
It appears to me that the applicant’s primary reason for not wanting to return to Vietnam is his desire to remain in Australia with his partner and daughter. I acknowledge his stated need to be with them to provide them with financial and emotional support. I accept that separation from his family will be distressing for him, however it is open for his partner and child to move to Vietnam with him. He has not claimed that having a partner and daughter, whether they return to Vietnam with him or not, gives rise to a real chance of serious harm.
Having considered the applicant’s claims individually and cumulatively, I do not accept that the applicant has a well-founded fear of persecution because he has a debt to a money-lender, because of his participation in a demonstration against Formosa or because he faces unemployment and poverty in Vietnam, pursuant to s.5J(1) of the Act. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
I have accepted that the applicant took out a loan from a loan shark and was threatened and beaten when he was unable to repay the loan. He has however repaid more than double the amount borrowed, and although he expressed concern that he may still owe money, I am satisfied that the loan shark will not pursue him as more than 10 years have passed since he took out the loan and the loan shark has not contacted the applicant or his family since 2017 when he arrived in Australia. Accordingly, I do not accept that there is a real risk that the applicant will suffer significant harm from loan sharks if he returns to Vietnam.
For the reasons given above, I do not accept that the applicant has a profile as an activist or opponent of the government because of his participation in a protest 7 years ago. I do not accept that there is a real risk that he will suffer significant harm from the authorities if he returns to Vietnam because he participated in a demonstration against Formosa.
I find that the applicant will be able to secure employment and support himself upon return to Vietnam. I am not satisfied that lower wages and a lesser standard of living in Vietnam amounts to significant harm, as that term is defined in s.36(2A) of the Act.
Having considered the applicant’s claims individually and cumulatively, I am not satisfied that there is a real risk that he will suffer significant harm as a result of his debt to a loan shark, his participation in a demonstration against Formosa or potential unemployment, as I do not consider that these amount to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly I find that the applicant does not satisfy s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Wall
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.
…

[2024] AATA 1272

20 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction