1813967 (Refugee)

[2023] AATA 2287

1813967 (Refugee) [2023] AATA 2287 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813967

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:11 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2023 at 10:02pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – attacks and threats from former employer with connection to criminal gang after applicant refused to smuggle drugs for him – credibility – period as unlawful non-citizen – no explanation for delay in applying, supporting evidence or appearance at hearing – responsibility to specify claims and provide evidence – country information – official actions against drug syndicates – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Zhang Su Rong v Refugee Review Tribunal [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicant on 14 May 2018.

2. The applicant who claims to be a citizen of Vietnam applied for a protection visa.[2]  The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there was a real risk he would suffer significant harm.  The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5] 

   [2]The applicant’s application was received by the Department of Home Affairs on 29 January 2018.

   [3]The delegate’s refusal was made on 14 May 2018.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant was not represented in relation to the review, and he filed an application with the Tribunal for a review of the delegate’s decision.[6]  Accompanying that application was a copy of the delegate’s decision. 

   [6]The applicant’s review application was filed with the Tribunal on 14 May 2018.

4. At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[7]  The applicant was invited to attend a scheduled hearing to give oral evidence and present arguments.  That invitation was sent to him at his nominated email address of [Email address].  

   [7]The Tribunal advised the applicant on 20 February 2023.

5. The applicant did not respond to that invitation, instead he lodged with the Tribunal a form updating his contact details.[8]  The Tribunal noted that his email and contact mobile telephone numbers remained the same as the original details he provided when he lodged his review application.  However, the only change to his previous personal particulars and contact details was his new residential and postal address in Melbourne.  It was noted by the Tribunal that he did not provide any verification that he resided at that address, such as a rental bond or other type of lease or accommodation agreement.     

   [8]Dated 11 March 2023.

6. Because the applicant did not specifically respond to the hearing invitation provided to him on 20 February 2023, the Tribunal wrote to him and requested that he provide the hearing response form.  Notwithstanding that request, there has been no further communication received from him despite the Tribunal sending an SMS mobile telephone messages to him on 28 March 2023 and 4 April 2023 reminding him of the scheduled hearing.

7. The applicant did not appear at the scheduled time and place of the hearing and this decision is made on the papers.  When assessing the communications between the applicant and the Tribunal, along with the notifications about the hearing which were provided to him, the Tribunal finds that he was provided with ample advice well in advance of the scheduled hearing.    

   CRITERIA FOR A PROTECTION VISA

8. The measures for a protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10]  That is, the applicant 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.

   [9]Migration Act1958 (Cth), s 36.

   [10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

9. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]

   [11]Migration Act1958 (Cth), s 36(2)(a).

10. 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.[12]  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.[13]

    [12]Migration Act1958 (Cth), s 5H(1)(a).

    [13]Migration Act1958 (Cth), s 5H(1)(b).

11. The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]

    [14]Migration Act 1958 (Cth), s 5J(1).

    [15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

12. If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]

    [16]Migration Act 1958 (Cth), s 36(2)(a).

    [17]Migration Act 1958 (Cth), s 36(2)(aa).

    [18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

13. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]

    [19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

14. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]

    [20]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

15. The applicant claims to be a citizen of Vietnam and to authenticate this, he provided a copy of his passport.[21]  The Tribunal accepts the applicant’s identity and based on the evidence he provided to the Department, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]

    [21]Applicant’s passport issued in Vietnam on 17 July 2014.  

    [22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

16. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[23]

    [23]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

17. In accordance with Ministerial Direction No. 84 made under the Act,[24] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [24]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE

18. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[25]

    [25]Migration Act 1958 (Cth), s 36(2).

19. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed.  Similarly, because the applicant claims he faces 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 the statutory elements are made out.

20. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his 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.[26]  Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]

    APPLICANT’S BACKGROUND AND CLAIMS

    [26]Migration Act 1958 (Cth), s 5AAA.

    [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    Background

21. The applicant was born in Vietnam.  On 27 October 2014, he was granted a tourist visa.  He arrived in Australia subject to that visa [in] December 2014.  That tourist visa was valid until 29 January 2015.  When his tourist visa expired, he failed to return to Vietnam and remained in Australia as an unlawful non-citizen for a little over three years. 

22. What followed was the applicant lodging his protection visa application with the Department on 29 January 2018.  He was then issued with a bridging visa on 2 February 2018.  When his application was subsequently assessed by the delegate, a decision was made to refuse his application.  When advised by the delegate of the decision, the applicant filed an application with the Tribunal to review that decision.[28]

    [28]On 14 May 2018.

    Claims

23. Notwithstanding he has never explained why he had never lodged his protection visa application with the Department during the three years after he arrived in Australia, he claimed the reason he left Vietnam and travelled to Australia was to protect himself. 

24. The applicant claimed that he left Vietnam because his former employer had borrowed some money from what the applicant described as ‘very bad people’.  When his former employer started to associate with these people, his former employer started making the applicant try to smuggle drugs for him within the Vietnam.  The applicant claimed that when he refused to get involved, his former employer took it personally and has since verbally assaulted and physically attacked the applicant.  The applicant recalls that on one day when he arrived home, he saw that his house had been destroyed.  He claimed that it had been ‘invaded’ by his former employer and a death threat had been left behind saying if the applicant did not work for him, he would dispose of the applicant.  The applicant claimed that this scared him, and he fled to Australia. 

25. In respect to experiencing physical harm and verbal attacks as well as death threats sent to him, he said he did not seek help from the authorities or the police because his community was turning a blind eye to what was happening, and he could not oppose his former employer, because if he did, it would have been a reckless decision for him to return to Vietnam as his former employer’s connections in the country would have been too much for him to escape.  He said he would have been hunted and tortured before being killed. 

26. The applicant also claimed that because of the relationship between his former employer and  the authorities, his concerns were ignored, and the authorities wanted nothing to do with him.  Relocation to another part of Vietnam was not possible as he would not be able to escape his former employer’s network of connections within Vietnam.  The only option for him was flee Vietnam all together.

    Consideration of the applicant’s claims

27. Apart from filing his application for a protection visa with the Department, the applicant has never provided any evidence, whether that be a statutory declaration, statement or other relevant material to support or validate the claims he made.  Nor has he provided any evidence or supporting material to the Tribunal.  The only documents ever produced by the applicant was his originating application containing his claims which he lodged with the Department; and when that application was refused, he lodged an application with the Tribunal to review that decision.   

28. The Act provides that because the applicant, who is a non-citizen, has claimed to be a person in respect of whom Australia has protection obligations, he has the responsibility to specify all particulars of his claim to be such a person in need of protection.  He is also obliged to provide sufficient evidence to establish the claim.  To remove doubt, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of his claim; and nor does it have any responsibility or obligation to establish, or assist in establishing, the claim.[29]

    [29]Migration Act 1958 (Cth), s 5AAA.

29. Although the information he provided to support his application is scant, the Tribunal understands that the applicant claims to fear physical harm if he returned to Vietnam. He claims that his former employer will harm him. It is particularly noted by the Tribunal that he does not claim to have a well-founded fear of harm in Vietnam because of his race, religion, nationality, political opinion or as a member of particular social group and the applicant has not provided any evidence or information to suggest that he will be targeted upon his return to Vietnam for one or more of the reasons mentioned in section 5J(1)(a) of the Act.

    Country information

30. The Tribunal has to its availability significant country information which the Tribunal considers to be reliable and credible.  That country information provides that there are two main security forces within Vietnam.  They are the People’s Security Force which primarily collects intelligence for national security purposes and the People’s Police Force, which is responsible for social order, public safety, and manages more traditional police work.[30]  The police operate across a broad spectrum of the society, including at the national, provincial, district, and commune levels.[31]  While the Ministry of Public Security is responsible for internal security and policing, it is known that in practice, provincial and local-level police may be subject to the authority of local people’s committees.[32]  Recruits to the police force must be members of the Communist Party of Vietnam or the Communist Youth League.[33]

    [30]The DFAT Country Information Report: Vietnam, 11 January 2022, page 29, paragraph 5.1.

    [31]The DFAT Country Information Report: Vietnam, 11 January 2022, page 29, paragraph 5.2.

    [32]Country Report on Human Rights Practices 2018, Vietnam, United States of America Department of State, 13 March 2019, page 7.

    [33]DFAT Country Information Report, Vietnam, 13 December 2019, page 40.

31. Reliable and credible country information suggests that the Vietnamese police sometimes take very strong and effective action to investigate crime, although this is not always the case.[34]  As a general rule, the police lack proper funding and training, with local police only initiating investigations for crimes they determine serious.[35]  The Tribunal finds that the smuggling of illicit drugs within Vietnam would be determined by the authorities as a serious crime.

    [34]DFAT Country Information Report, Vietnam, 11 January 2022, page 29, paragraph 5.3.

    [35]Vietnam 2020 Crime & Safety Report: Hanoi, Overseas Security Advisory Council, 'Vietnam 2020 Crime & Safety Report: Hanoi', Overseas Security Advisory Council, US Department of State, 9 March 2020. 

32. Recently, Vietnam's Ministry of Finance established a working group to combat airborne smuggling after four flight attendants were arrested for their involvement in drug trafficking from France to Vietnam.  A group consisting of eight members of relevant ministries and agencies including public security, customs authorities, and market management has been established under the leadership of Vietnam’s head of the national steering committee for combating against smuggling, commercial frauds and counterfeit goods.  The working group is assigned to oversee air smuggling, collecting information on illegal transportation of goods through international airports and coordinating forces of action to handle special cases.  To date, there have been eight cases of drug trafficking with an estimated 15 kilograms drugs seized at the Tan Son Nhat airport.  In January, the Hanoi police seized 98 kilograms of drugs, including MDMA and ketamine, hidden in chocolate packages sent from Germany to Vietnam.  It was reported that during 2022, Vietnam recorded 303 cases involving trafficking more than one ton of various kinds of narcotics.[36]  

    [36]Vietnam steps up fight against air drug smuggling after latest bust, The Star newspaper, 21 March 2023,

1. Having regard to the country information as already discussed relating to the Vietnam police, the Tribunal finds that there the credible and reliable country information provides that the Vietnamese authorities and the police have made concerted efforts to target major and organised crime syndicates, in particular illicit drugs, and have taken prosecutorial action against those who have been apprehended.  There is nothing before the Tribunal which would lead to a finding other than one which suggests that the applicant would receive effective and sufficient protection from the police against the threats he may face from criminal gangs involved in the drug trade should he return to Vietnam.

2. When carefully considering the applicant’s claims, and balancing those uncorroborated and unsubstantiated claims which lack support from any probative evidence or material against the credible and reliable country information, the Tribunal finds that the country information carries greater weight than his claims.  Therefore, the applicant’s claims are rejected.     

   Delay in lodging an application for protection

3. The Tribunal identifies that there has been a significant delay between the applicant’s arrival in Australia [in] December 2014 to when he lodged his application for a protection on 29 January 2018.  It is identified that his visitor visa expired on 29 January 2015, and from that date he was an unlawful non-citizen until he was granted a bridging visa on 12 February 2018.  That is a period of a little over three years.

4. In respect to any consideration about the delay between the applicant’s arrival in Australia and his application for a protection visa, the Tribunal is guided by the principle that even a three month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.[37]

   [37]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.

5. When applying the above principle to an assessment of the applicant’s original claims, the Tribunal notes the significant delay of approximately three years between his arrival in Australia to when he lodged his protection visa application.  That is quite a significant and substantial delay, and the Tribunal finds that it is not behaviour indicative of someone who fears for their physical safety as claimed by the applicant.[38]  The Tribunal particularly notes that he has provided no evidence or offered any explanation as to the extraordinary delay in making his application.

   [38]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

6. The Tribunal has considered the applicant’s delay in applying for protection in Australia and finds that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Vietnam.  The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

   Refugee findings

7. The Tribunal has given careful consideration to the applicant’s claims specifically outlined in his application lodged with the Department, along with consideration given to whether on the available evidence there is a foreseeable consequence of him returning to Vietnam is a real risk that he will suffer significant harm in regard to his former business partner and the Vietnam police. 

8. The Tribunal has carefully considered the credible country information which is outlined within these reasons.  The Tribunal finds that the country information shows that improvements have been seen about the capacity of the police to combat crime and to enforce the law within Vietnam, particularly in regard to the drug trade.  

9. The Tribunal identifies that the applicant claims of his former employer being involved in ‘drug smuggling’ within Vietnam, and the connections his former employer has with the organised criminal gangs involved in the drug trade.  However, as already identified, the Tribunal finds that no evidence or information was provided by the applicant to substantiate any connection between his former employer and any associated criminal gangs involved in the drug trade.  Nor does there appear to be any reason why the applicant would not be able to avail himself of protection of the Vietnam police given the ability of the Vietnamese police to investigate and to combat the illicit drug trade.

10. Therefore, the Tribunal is of the view that any reasonable assessment based on the claims raised by the applicant and the absence of any evidence to support those claims would conclude that there is not a real chance of him being subjected to persecution in Vietnam for any of the reasons provided in section 5J(1)(a) of the Act.

11. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

    Complementary protection considerations

12. The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm.

13. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[39] the Tribunal has considered the alternative criterion.[40] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[41]

    [39]Migration Act 1958 (Cth), s 36(2)(a).

    [40]Migration Act 1958 (Cth), s 36(2)(aa).

    [41]Migration Act 1958 (Cth), s 36(2A).

14. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for the reason he claimed if he returned to Vietnam.  Helpfully, the courts have discussed the test for ‘real risk’ and determined 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.[42]

    [42]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

15. Having considered the applicant’s claim, the Tribunal does not accept that if he returned to Vietnam now or in the reasonably foreseeable future, he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; nor will he be subjected to degrading treatment or punishment.

    Conclusion: refugee criterion

16. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    Conclusion: complementary protection criterion

17. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, he will be exposed to a real risk of suffering significant harm.

    Overall conclusion

18. 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 section 36(2)(a) of the Act.

19. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

20. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Wayne Pennell
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958 (Cth)

    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.

    …