1803850 (Refugee)

1803850 (Refugee) [2024] AATA 1544 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803850
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Catherine Wall
DATE:12 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 March 2024 at 3:00pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – family connection to former Vietnamese regime – corruption – employment – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
BBK15 v MIBP (2016) 241 FCR 150
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAAJ v MIBP [2015] FCA 478
Prasad v MIEA (1985) 6 FCR 155
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 8 February 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first applicant, [named], is [an age] year old citizen of Vietnam. He last arrived in Australia [in] December 2014 and applied for the protection visa on 18 May 2017.
The second applicant, [named], is [an age] year old citizen of Vietnam. She also last arrived in Australia [in] December 2014 and applied for protection on 18 May 2017.
The applicants claim that they are married. They lodged separate claims for protection.
The first applicant claims that he faces difficulties because he is Catholic and his relatives worked for the former Vietnamese regime. He also claims that there is corruption in Vietnam and he cannot find employment.
The delegate refused the visa as country information indicates that the applicant hails from a region that has a prevalence of Catholics. The applicant had not provided any specific examples of difficulties that he has faced in his home region. His claim that the former regime has made it difficult for him to find employment and that he has been monitored was not accepted given that he has travelled to and from Vietnam without difficulty. The delegate also found that Vietnam has experienced rapid economic growth and that employment opportunities have resulted from this economic growth. The applicant was not invited to an interview with the department.
The second applicant claims that she is Catholic and fears harm from the authorities because of her religion. She also claims that she cannot obtain employment in Vietnam as the coastline was poisoned and there is not financial support available.
The delegate refused to grant the visa as country information indicates that the applicant hails from a region that has a prevalence of Catholics and the applicant had not provided any specific examples of difficulties that she has faced in her home region. The delegate also found that country information cited above indicates that Vietnam has experienced rapid economic growth and that employment opportunities have resulted from this economic growth. The applicant was not invited to an interview with the department.
The applicants applied for review of those decisions on 14 February 2018. On 29 January 2024 the Tribunal invited the applicants to attend a hearing on 1 March 2024. On 15 February 2024 the first applicant requested that the hearing be conducted by video. The Tribunal considered this request and declined to conduct a video hearing as the applicants reside within a reasonable distance of the Melbourne CBD and they did not provide a reason for not attending the hearing in person.
On 23 February 2024 the first applicant advised the Tribunal that the second applicant was unwell and unable to attend the scheduled hearing and he requested a postponement. He attached a medical certificate which stated that [the second applicant] was receiving medical treatment in the period 23 February 2024 to 23 March 2024 and was unfit to continue her usual occupation. The Tribunal refused the request for postponement as the medical certificate said that the applicant was not fit for work but did not state that she was unable to attend a Tribunal hearing.
On 27 February 2024 the first applicant advised the Tribunal that he and the second applicant were unable to attend the hearing and asked that the Tribunal ‘share the outcome with us via email’. On that same day the Tribunal responded to the applicants advising that the hearing would proceed on 1 March 2024 unless they provided evidence of their inability to attend for consideration by the Member. They were further advised that, if they did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear or the Tribunal may dismiss the application for review without any further consideration of the application or the information before the Tribunal.
The applicants did not respond to the above correspondence and did not attend the scheduled hearing. In these circumstances the Tribunal considers it appropriate to decide the matter on the evidence before it.
CLAIMS AND EVIDENCE
First applicant – [named]
A summary of the applicant’s personal details and claims as detailed in his protection visa application are as follows:
oHe was born in Quang Binh province in Vietnam and married in 1990. He did not provide details of any children.
oHe is a Vietnamese citizen and a Catholic and his occupation is [deleted].
oHe has been travelling around trying to find work in Vietnam.
oHis relatives worked for the former regime in Vietnam and therefore his family is watched/ignored/followed by the authorities.
oHe is Catholic which makes it worse living in the town.
oHe cannot relocate as the Communist government is everywhere. There is no protection for his family as there are spies.
oThere is no financial support.
Second applicant – [named]
A summary of the applicant’s personal details and claims as detailed in her protection visa application are as follows:
oShe was born in Quang Binh province in Vietnam. She married in 1992 and has a son, [named[, born in [specified year].
oHer son is listed as an Australian contact who lives in Melbourne.
oShe is a Vietnamese citizen, her religion is Catholic and her occupation is [deleted].
oAs a Catholic she was watched/ignored/followed by authorities.
oHer coastline was poisoned and this resulted in unemployment so she cannot obtain work.
oIf she returns she will be unable to obtain a job for survival, and she will be isolated, ignored, watched and followed by authorities.
oThe authorities will never protect Catholics. They tried to travel out of the country to better places but they were watched even more.
oShe cannot relocate as there is one government and the situation is the same everywhere. There is no financial support.
The applicants did not submit any further evidence to the Tribunal in support of their application for review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 DFAT Country Information Report Vietnam dated 11 January 2022.
ASSESSMENT
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.[1]
[1] (1999) 197 CLR 510.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Identity
The applicants’ nationality is not an issue. They travelled to Australia on valid Vietnamese passports and have consistently stated in documentation that they are nationals of Vietnam. The delegate did not indicate any concerns about the applicants’ identity or nationality. Therefore, I am satisfied the applicants are nationals of Vietnam and I have assessed their claims against Vietnam as their receiving country.
Applicant 1
Does the applicant meet the refugee criteria?
Lack of employment
There is limited information before me in regard to the applicant’s protection claims. As he has not provided any evidence to the Tribunal in support his application for review and has not attended the hearing, I must rely solely on the information in the visa application form and the delegate’s decision which the applicant provided to the Tribunal.
The applicant stated in the visa application that he could ‘hardly get employment’ in his birth place of Quang Binh or in Binh Thuan. However he also stated that he was employed prior to 2014 in Binh Thuan in farming and private business. I find that the applicant has not provided sufficient information for me to accept his claim that he will not be able to obtain employment upon return to Vietnam or that he will not be able to support himself.
There is no evidence before me to indicate that an essential and significant reason for the claimed economic difficulties experienced by the applicant arises from his race, religion, nationality, political opinion or membership of a particular social group. For this reason, the unemployment and economic harm feared by the applicant on return to Malaysia does not meet the criteria set out in s 5J(1)(a) of the Act.
Persecution as a Catholic
The applicant claims that he was watched/ignored/followed by authorities. He has provided no details of the nature of his religious practise, the location of his church and church community or whether his church is registered with the state. He has not provided details of previous incidents of threat or harm he experienced when practising his faith.
On the limited information before me I do not accept that there is a real chance that the applicant will face serious harm because of his Catholic religion if he returns to Vietnam.
Family connections to previous regime and corruption
The applicant claims that his relatives worked with the previous Vietnamese regime before 30/4/1975 and therefore he is being watched and followed by local authorities. He has not provided details about which relatives worked for the previous regime, in what capacity they worked or how they were treated after the North Vietnamese took control of the country. There is also no information available about the applicant’s experience of harassment or threat as a result of his relatives’ actions prior to 1975.
I find that the applicant has not provided sufficient information for me to be satisfied that his claim of political persecution is true. Accordingly, I do not accept that there is that there is a real chance that the applicant will face serious harm because of his family’s previous political associations if he returns to Vietnam.
While the applicant claimed that there is corruption in Vietnam, he provided no details of the corruption or how it has impacted on him in any way.
Having considered the applicant’s claims individually and cumulatively, I do not accept that the applicant has a well-founded fear of persecution because the economy is poor, because he will be unemployed, because of religious discrimination, because of government corruption or because of his family’s political history, 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?
In considering whether the applicant meets the complementary protection criteria set out in s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Vietnam, there is a real risk he will suffer significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[2].
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

There is simply insufficient information before me to accept that the applicant’s claimed reasons for leaving Vietnam and not wanting to return are true.
On the limited information before me, I do not accept 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 the applicant will suffer significant harm: s 36(2)(aa).
Applicant 2
Does the applicant meet the refugee criteria?
Lack of employment
There is limited information before me in regard to the applicant’s protection claims. As the applicant did not provide any evidence supporting her claims to the Tribunal and has not attended the hearing, I must rely solely on the information provided to the department.
The applicant stated in the visa application that the coastline was poisoned resulting in unemployment and she could not get a job. No details are provided of the poisoning incident or of the direct impact on the applicant’s ability to secure employment. She stated that between 1990 and 2013 she worked for various businesses in Binh Thuan as a labourer/general hand. She has not provided details of periods of unemployment or underemployment.
There is simply insufficient information available for me to accept her claim that she will not be able to obtain employment upon return to Vietnam or that she will suffer economic hardship.
There is no evidence before me to indicate that an essential and significant reason for the claimed economic difficulties experienced by the applicant arises from her race, religion, nationality, political opinion or membership of a particular social group. For this reason, the unemployment and economic harm feared by the applicant on return to Vietnam does not meet the criteria set out in s 5J(1)(a) of the Act.
Persecution as a Catholic
The applicant claims that she was watched/ignored/followed by authorities as a result of her family background as a Catholic. She has not however provided any information about specific incidents or monitoring, or threats or inability to practise her faith. Nor has she provided information about the location of her church and whether her church is registered with the authorities. She did not explain why being ignored by authorities in relation to her Catholic faith is problematic.
There is simply insufficient evidence before me to indicate that there is a real chance that the applicant will face serious harm because of her Catholic religion if she returns to Vietnam.
Having considered the applicant’s claims individually and cumulatively, I do not accept that the applicant has a well-founded fear of persecution because she will be unemployed or because of religious discrimination or for any other reason, 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?
In considering whether the applicant meets the complementary protection criteria set out in s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Vietnam, there is a real risk he will suffer significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[3].
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
For the reasons given, I find that the applicant has provided insufficient information to support her claims, therefore I am not satisfied that her claimed reasons for leaving Vietnam and not wanting to return are true.
On the limited information before me, I do not accept 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 the applicant will suffer significant harm: s 36(2)(aa).
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants are person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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 1544

12 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Remedies