1810966 (Refugee)

1810966 (Refugee) [2022] AATA 801 (2 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810966
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Bridget Cullen
DATE:2 February 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 February 2022 at 3.04pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – threats from loan shark – borrowed money on behalf of parents – issues with parents’ business – no evidence of business or signed loan document – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 17 January 2016. The delegate refused to grant the visa on the basis that the applicant was not someone to whom Australia had protection obligations to.
The applicant appeared before the Tribunal on 28 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the definition of refugee as defined by s.5H(1) of the Act, for the purposes of s.36(2)(a) (that being a person to whom Australia has protection obligations), or in the alternative, if they are a person that Australia has protection obligations to because there are substantial grounds for believing that the applicant will suffer significant harm if removed from Australia and returned to a receiving country.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant Claims
The applicant, when lodging their visa application, made the following claims for protection, as summarised by the delegate:
·The applicant had to borrow money from relatives and could not repay the debt because of economic reasons. He fears being beaten, injured or killed by the creditors.
·The applicant Vietnam because he could repay the debt because of the judiciary, law enforcement, the poor system of government, bureaucracy which has affected the economy, poverty and unemployment levels in Vietnam.
·The applicant has not received help from the authorities because they consider it to be a personal, economic problem.
Country Information
In assessing whether the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of removal to Vietnam, the delegate considered the following country information:
Background
The Socialist Republic of Vietnam is an authoritarian state ruled by a single party, the Community Party of Vietnam (CPV). The country’s population is an estimated 93.4 million.3 The US Department of State reported in March 2017 that the most significant human rights problems in the country were severe government restrictions of citizens’ political rights, particularly their right to change their government through free and fair elections; limits on citizens’ civil liberties, including freedom of assembly, association, and expression; and inadequate protection of citizens’ due process rights, including protection against arbitrary detention.
Social Infrastructure
Vietnam has experienced rapid economic growth over the past 25 years, transforming itself into a lower middle-income country. Vietnam’s GDP per capita growth has been among the fastest in the world since 1990, reaching an average 6.4 per cent a year in the 2000s, and resilient domestic demand and the strength of the country’s export-oriented manufacturing means that this is expected to continue into the medium term. Economic growth has been equitable, leading to a dramatic reduction in poverty and improved social outcomes.7 Vietnam’s Ministry of Labour, Invalids and Social Affairs reported in 2014 that the national poverty rate was 7.8 per cent. The unemployment rate has averaged 2.3 per cent from 1998 until 2017, with a record low of 1.63 per cent in the second quarter of 2014.9 The UNDP’s Human Development Index ranked Vietnam 115 out of 189 countries in 2016, placing it in the ‘medium human development’ category.
Vietnam has an expanding if still limited social welfare system, while traditional social roles mean that families provide support for the elderly and sick. Vietnam’s social welfare net has expanded in recent years, well beyond the anti-poverty program started in the 1990s. New programs have included assistance of 2.16 million VND (AUD $119) a year and a free health insurance card for all elderly people from the age of 80 onwards, the provision of assistance to single elderly people with limited incomes and no children; and assistance to disabled people, including victims of Agent Orange. However, inequalities in the provision of social welfare exist. Vietnam’s social insurance has also not achieved universal coverage despite a voluntary social insurance policy having been in force since 2008. Poverty gains are fragile, and a significant proportion of the population – particularly ethnic minorities – remains vulnerable and lives close to the poverty line.
DFAT in its 2017 Country Information Report - Vietnam noted the following:
Economic overview
The World Bank describes Vietnam as ‘a development success story’. Economic reforms (known as Đổi Mới or ‘Renovation’ reforms) launched in 1986 transformed the country from one of the poorest in the world at that time to ‘low middle income status’ over a period of 25 years. Its per capita GDP growth is recognised as one of the fastest in the world, with per capita income moving from USD100 in the early 1990s to around USD2,100 by the end of 2015.
While the national poverty rate has declined significantly, from 58 per cent in the early 1990s to 13.5 percent in 2014, it is still above 50 per cent in ethnic minority areas. Rural populations are susceptible for falling back into poverty due to declining productivity growth and economic vulnerabilities. Recurring environmental effects and Government decisions relating to land acquisition and manufacturing or mining production are more likely to affect rural populations.
Vietnam is ranked 115 out of 188 countries in the latest United Nations Human Development Index (HDI). Transparency International’s 2016 Corruption Perceptions Index (CPI) ranked Vietnam 113 out of 176 countries; compared with Cambodia at 156, Laos at 123, Thailand at 101 and China at 79.17
Employment
The law prohibits discrimination with respect to employment and occupation based on sex, race, disability, social class, marital status, religion, and HIV/AIDS-positive status. The law promotes and encourages the employment of persons with disabilities; however, in practice social and attitudinal barriers exist to varying degrees.
Agriculture employs around 44 per cent of all workers in Vietnam, although this share has been declining steadily and is down from around 70 per cent in 1996. The share of employment in the industrial sector, including manufacturing, has approximately doubled since 1996, to around 21 per cent.
Vietnam introduced new minimum wage standards effective 1 January 2017. There are four regional minimum wages currently ranging from VND2.58 million to VND3.76 million (AUD153 – 224) per month. It is unclear at time of writing how widely they have been implemented. Fines exist for labour violations, but are not always enforced due to shortage of training inspectors and low funding. The International Labour Organization (ILO) estimates that around 82 per cent of total employment is informal (or unprotected) labour. Vietnam does not have independent labour unions.
Judicial System
There are nominal legal provisions which establish the independence of courts and procuracies in legal proceedings including the Penal Code and the Criminal Procedure Code, but there is a high level of political influence in the appointment of judges, who have limited tenure. Most judges are members of the Communist Party of Vietnam and are screened by local officials for suitability before appointment.
A 2014 law on court organisation is designed to provide fair trials and prevent interference in trials as well as ensuring the presumption of innocence.
Access to legal representation is inadequate. There are reports that as few as 20-30 percent of defendants can obtain access to legal counsel, including cases subject to death penalty. There is a shortage of well-trained judges and lawyers (including defence lawyers).
Corruption
The US Department of State reported that corruption continued to be a major problem in 2016 despite government leaders’ continued focus on the issue. Corruption among police remained a significant problem at all levels, and police sometimes acted with impunity. Government leaders acknowledge widespread public discontent with the level of corruption. Institutions providing state protection are liable to corruption although some reforms have been introduced. The Law on Anti-Corruption criminalises corrupt practices by public officials. The police, judicial system, and public services sector are subject to corrupt practices, however successful prosecution of corrupt officials occurs. There have been a number of high level prosecutions of public officials in recent years.
In a recent article published in January 2017, it was reported that “Perceived levels of corruption in Vietnam’s public sector have improved for the first time in five years thanks to the country’s on-going anti-corruption efforts. Transparency International (TI) released its Corruption Perceptions Index 2016 on Wednesday, ranking Vietnam at 113 out of 176 countries and territories based on perceptions of experts and business people”. The country has made “positive steps” in improving legal frameworks and policies on anti-corruption, including passing the Law on Access to Information and revising the Law on Anti-Corruption 10 years after they were originally issued.
Efforts to combat corruption in the public sector, includes targeting families of public officials in anticorruption drive, the move shows that the government has taken serious steps to fight against corruption.
State Protection
Institutions providing state protection are liable to corruption although some reforms have been introduced. The Law on Anti-Corruption criminalises corrupt practices by public officials. The police, judicial system, and public services sector are subject to corrupt practices. Successful prosecution of corrupt officials occurs. There is no separation of powers in Vietnam and the legislature, the executive and the judiciary are combined into the party-state system.
Police effectiveness against crime
Internal security is the responsibility of the Ministry of Public Security. There are police organisations the provincial, district and local levels over which people’s committees exercise some authority. There are two core forces - the People’s Security Force (An ninh Nhan dan), responsible for national security, and the People’s Police Force (Canh sat Nhan dan), responsible for social order and public safety. The People’s Police force handle traditional police work such as neighbourhood policing, traffic control, household registration, and identification cards.
Police are said to be effective in maintaining public order but have limited capacity in other especially investigative areas. Law enforcement personnel are present in force across the country especially during politically sensitive gatherings or occasions. At the commune level, guard forces composed of residents or members of government-affiliated social organizations commonly assist police. Resources for police including training are not adequate, especially in the case of commune police.
Police officers sometimes act with impunity. Internal police oversight structures exist but are subject to political influence. Police still frequently ill-treat or torture suspects to elicit confessions and sometimes use excessive force in responding to protests over evictions, land confiscation, and other social issues. Police officers rarely face any consequences for even serious transgressions. There are reports of deaths in custody. In 2015, President Truong Tan Sang condemned the practice of torture and forced confessions and convictions of both police and judges has occurred as part of a priority reform.
Internal relocation
DFAT reports that internal relocation is common, with large scale urbanisation occurring in recent decades alongside other migration for economic purposes. Younger members of ethnic groups schooled in the Vietnamese language are significantly more likely to overcome linguistic and cultural barriers to successfully relocate internally.
The US State Department’s 2015 Country Report on Human Rights Practices (USSD Report 2015), Vietnam, published on 13 April 2016, stated: ‘The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation, but the government imposed some limits on the movement of certain individuals, especially those convicted under national security or related charges or those outspoken in their criticism of the government.’
Assessment of the Applicant’s claims
The applicant told the Tribunal that he was in danger if he returned to Vietnam, as he had borrowed 700 Million Dong from a loan [shark]. He needed money to help his parents with their [farm] business, which had suffered following a disease epidemic.
There is no evidence corroborating the existence of the [farm], or disease epidemic, before the Tribunal. The Tribunal asked the applicant why he needed to borrow money from a loan shark, and he said it was because he didn’t have credit. The Tribunal also asked why he needed to borrow the money rather than his parents, given it was there farm. He told the Tribunal that he wanted to help his family.
Now, the applicant is unable to return the money and says that he fears “the creditor may hire a gangster to harm” him. The applicant says he was threatened in June of 2017 when he was “hit at my face,” and threatened with having his finger chopped off. He was last contacted in November of 2017.
The applicant did not contact police as he has “signed a contract”. There is no contract of any sort before the Tribunal.
At the end of the hearing, the Tribunal asked the applicant if there was anything further he wanted to provide to the Tribunal, or any matters of concern that he had not already told the Tribunal about, and he said that there were not. He explained that he is presently working for [a business] in [a town], and he would not be able to find work if he returned to Vietnam.
The Tribunal does not accept that the applicant borrowed any money from loan sharks, nor does the Tribunal accept that the applicant has been threatened with harm at any point or is in any danger.
The applicant has provided scant detail of his claims, and limited particulars of the threats, even when afforded the opportunity. While the Tribunal might reasonably think there would be some documentary evidence before the Tribunal corroborating his claims about his parents’ [farm] (even the existence of same), yet none has been provided.
The only claim made by the applicant in relation to the need for protection arises from his alleged fear that he will be beaten or killed by loan sharks. The Tribunal does not accept these claims in their totality, and finds that the applicant has created the narrative in order to try and achieve a migration outcome that would permit him to remain in Australia.
Does the applicant have a well-founded fear of persecution in relation to Vietnam and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above, the Tribunal does not accept the applicant faced any difficulties from any loan sharks or is even known by any loan sharks. The Tribunal does not accept were the applicant to return to Vietnam, now or in the reasonably foreseeable future, that he will face any of the difficulties he claims at the hands of any loan sharks or money lenders.

It follows that the Tribunal does not accept that the applicant will be killed or harmed, threatened, or be required to pay back any debt, or experience economic difficulties arising from his alleged borrowing activities. For the same reasons, the Tribunal does not accept that the applicant’s family will be threatened or harmed because of any debt by him to loan sharks.
As a result, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to Vietnam, in the reasonably foreseeable future at the hands of any loan sharks. Similarly, based on the findings above and on the basis of the evidence before it, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Vietnam, at the hands of loan sharks.
Conclusions regarding the Refugees Convention
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Vietnam in the reasonably foreseeable future. As the Tribunal has rejected the applicant's claims in their entirety, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicant's claims in their entirety. The Tribunal therefore does 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 he will suffer significant harm as defined in subsection 36(2A).
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.
Bridget Cullen
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 801

2 February 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing