1814207 (Refugee)

1814207 (Refugee) [2023] AATA 4547 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:Unrepresented
CASE NUMBER: 1814207

COUNTRY OF REFERENCE: Vietnam
MEMBER:Kate Chapple
DATE:26 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 October 2023 at 7:17am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – failed asylum seeker – economic conditions – fear of loan sharks – state protection – period of unlawful residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998
Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
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.
DECISION ON THE PAPERS

On 5 October 2023, the Tribunal wrote to the applicant advising that his case was being prepared for constitution to a Tribunal member and inviting him to complete a pre-hearing form.
On 6 October 2023, the applicant returned the completed pre-hearing form to the Tribunal confirming: I do not want to have a hearing and I consent to the Tribunal making a decision on the papers without inviting me to a hearing for my case.
The applicant set out in the pre-hearing form the following additional information in relation to his claims for protection (spelling and grammar not corrected):
I have been living in Australia for 14 years and have not returned to my home country during this time. I deeply appreciate and love Australia’s culture, traditions, and its people. I live with my [sister’s] family and my uncle’s family, who have been citizens here for 43 years.
Unfortunately, my wife in Vietnam passed away in 2015.This year I just got marriage at Australia [in] 2023. Therefore, I am seeking your assistance in processing my application to legally stay in Australia for an extended period. I am truly grateful for your consideration and hope that my case will be accepted. This will allow me to work legally and give back to the country that has taken care of me all these years.
Thank you for your understanding and support and my deeply sincerely appreciate to your helping.
This is a record of the Tribunal’s decision on the papers.
MATERIAL BEFORE THE TRIBUNAL
Protection visa application lodged 15 September 2017 setting out the following protection claims (spelling and grammar not corrected):
5.1.[Why did you leave Vietnam?] I LEFT MY OWN COUNTRY BECAUSE DISTRUST OF THE JUDICIARY AND LOW ENFORCEMENT, POOR SYSTEM OF GOVERNMENT, BURREACRACY STARTING FROM THE LOWEST LEVER UP TO THE TOP.THE DISTRUCTION OF THE GLOBAL ECONOMY IMPACT ON THE NATIONS ECONOMY. POVERTY AND UNEMPLOYMENT ARE STILL BIG, DUE TO SUCH PROBLEMS, AS THE PEOPLE OF VIETNAM, I HAS BEEN LIVING IN HARSH CONDITION SO I HAD TO BORROW MONEY FROM MY RELATIVES BECAUSE OF THAT I FINALLY COULD NOT PAY THE DEBT. I LIVE IN MENTAL DISTRESS AND FEAR. MANY PEOPLE IN VIETNAM HAVE PROBLEM LIKE ME, WHO BORROWED MONEY HAD BEEN HIT, INJURED AND KILLED. HOPE THE MENISIER OF IMMIGRATION CAN GIVE ME HOPE TO APPROVE MY PROTECTION APPLICATION TOGETHER WITH WORK RIGHT. THANK YOU THE GOVERNMENT OF AUSTRALIA.
5.2.[What do you think will happen to you if you return to Vietnam?] IF I RETURN TO MY COUNTRY, I WILL GET CAUGIITBY CREDITOR AND COULD BE BEATEN, INJURED OR KILLED. THEY WILL SEARCHING ME.
5.3.[Did you experience harm in Vietnam?] YES I ALREADY EXPERIENCE HARM IN THAT COUNTRY BECAUSE I ALREADY RECEIVED VERBAL THREATENED FROM THEM TO HURTING ME. BESIDES THAT, I LIVE IN HARDSHIP (BECAUSE THE BAD ECONOMY).
5.4.[Did you seek help in Vietnam?] YES BUT NOTHING HAPPEN BECAUSE THIS IS A MATTER OF ECONOMY OF THE COUNTRY (THEY CONSIDER AS A PERSONAL PROBLEM).
5.5.[Did you try to move to another part of Vietnam?] I DID NOT TRY TO MOVE TO ANOTHER PART OF THE COUNTRY BECAUSE THIS IS A MATTER OF SOCTO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM EVEN MOVE TO ANOTHER PLACES (INSIDE THAT COUNTRY).
5.6.[Do you think you will be harmed or mistreated if you return to Vietnam?] YES I WILL LIVE IN HARSH CONDITONS, SUFFERED DISCRIMINATION FOR TAWAINESE WOMEN.
5.7.[Do you think the authorities can and will protect you if you return to Vietnam?] NO BECAUSE THE AUTHORTTIES COULD NOT PROTECT ME BECAUSE THIS IS A MATTER OF SOCIO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM.
5.8.[Do you think you would be able to relocate within Vietnam?] NO, UNABLE TO RELOCATE BECAUSE THIS IS A MATTER OF SOCIO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM.
Decision record dated 27 April 2018 relating to the delegate’s refusal decision.
Departmental case file.
Internal departmental records relating to the applicant.
Application for review lodged 16 May 2018.
Applicant’s pre-hearing form dated 6 October 2023.
Country information
The DFAT Country Information Report for Vietnam dated 11 January 2022 provides (inter alia) as follows:
11.1.[2.5] According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation.
11.2.[2.9] Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support.
11.3.[2.11] Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services.
11.4.[3.102] Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
11.5.[3.103] Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
11.6.[3.104] There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place.
11.7.[3.106] While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
11.8.[3.107] DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large, organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.
11.9.[5.3] In-country sources told DFAT police tend to react to crime rather than proactively investigating crime. That is, police often rely on catching people in the act of committing crime rather than investigating or using circumstantial evidence. This is not always the case, however, and in-country sources told DFAT that sometimes police take very strong and effective action to investigate crime, but this is not a consistent experience. Political crimes may receive more police attention than non-political crimes.
11.10.5.9 The judiciary is subordinate to the CPV; there is no separation of powers. Judges at all levels are members of the CPV and are screened by the CPV before their appointment. There are rules issued to judges about what may or may not be admitted as evidence, but these are not public. This is more evident in high-profile cases but day-to-day court proceedings, by their nature, receive less attention and it is difficult to assess the level of political interference. Nepotism and cronyism also affect courts, meaning that judicial officers may not be well-trained in the law or its application.
11.11.[5.18] Internal relocation is common. Police keep close watch over relocation and citizens staying even one night away from their homes must register with local police. The 2020 US Department of State Human Rights Report states that this is enforced more strictly in the Central and Northern Highlands districts.
11.12.[5.19] Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.
11.13.[5.31] DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
11.14.[5.32] Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased.
11.15.[5.33] Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans. Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community.
11.16.[5.34] Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the claims and evidence, the Tribunal has taken account of:
13.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
13.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
13.3.The country information set out in this decision record.
In particular, the Tribunal notes the following credibility guidelines:
14.1.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person to meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
14.2.[9] Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
14.3.[10] The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
14.4.[36] The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear[1] of persecution or significant harm.
14.5.[37] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.[2] The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
[1] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6.
The Tribunal notes the following information disclosed in the material:
15.1.The applicant was born in [specified year] in Tinh Kien Giang province, Vietnam, and is of the Buddhist faith.
15.2.The applicant completed [number] years of schooling in Vietnam.
15.3.The applicant was employed in fishing while in Vietnam.
15.4.The applicant married in Vietnam in 2004, and his wife died in 2015.
15.5.The applicant’s parents and [another relative] live in Vietnam.
15.6.The applicant’s [sister] and uncle live in Australia.
15.7.The applicant visited Australia from January to May 2008 on a sponsored family visitor visa.
15.8.The applicant returned to Vietnam from May 2008 to June 2009.
15.9.The applicant last arrived in Australia in June 2009 on a sponsored family visitor visa.
15.10.The applicant was unlawful for 8 years from September 2009 to September 2017 when he lodged a protection visa application.
15.11.The applicant remarried in Australia in 2023.
The Tribunal summarises the applicant’s claims for protection as follows:
16.1.Distrust of the government and judiciary.
16.2.Unemployment, poverty and poor economic conditions.
16.3.He suffered discrimination for Taiwanese women.
16.4.He was unable to repay money borrowed from relatives and as a result was verbally threatened in Vietnam.
16.5.He could be beaten, injured or killed by creditor if he returns to Vietnam.
16.6.He will suffer socio-economic hardship if he returns to Vietnam
The Tribunal notes there is no written statement by the applicant or other documentary evidence to support the applicant’s claims.
In relation to the claims referred to in subparagraphs 16.1., 16.2. and 16.6., the Tribunal notes the country information and considers it is possible the applicant experienced poorly paid employment, poverty, and socio-economic hardship while in Vietnam, and it is possible he would experience similar conditions if he returns to Vietnam.
The Tribunal considers that if the applicant experienced these conditions in Vietnam in the past and the future, he did and would do so not as a result of being targeted or discriminated against for any reason specific to the applicant, but because of the prevailing conditions in Vietnam faced by the population generally.
The Tribunal considers the claim referred to in subparagraph 16.3. nonsensical. Further, it suggests to the Tribunal that the applicant was assisted in preparing his protection visa application, and that this and/or his other claims may not relate to his own circumstances.
In relation to the claims referred to in subparagraphs 16.4. and 16.5., the Tribunal notes the applicant’s claim that he was unable to repay money he borrowed from relatives, received verbal threats, and fears serious harm.
The Tribunal notes the country information refers in particular to illegal moneylending or loan sharking, however states more broadly that there is potential for retaliation for unpaid debts ranging from harassment and public embarrassment to violence.
The Tribunal considers there is no credible evidence before it to support a conclusion that the applicant borrowed money from relatives or any other person and/or was unable to repay the money and/or was verbally threatened as a result and/or would face any form of harm as a result if he returns to Vietnam.
Based on the country information, the Tribunal considers that if the applicant returns to Vietnam, he may be questioned by authorities on arrival, however there is no evidence before the Tribunal that the applicant has been involved in illegal movement, and therefore it is unlikely the applicant would be of adverse interest to the authorities.
The Tribunal notes the applicant’s parents and [another relative] live in Vietnam.
Based on the country information, the Tribunal considers that if the applicant returns to Vietnam, as a failed asylum seeker, he may face difficulties including unemployment or underemployment and challenges accessing social services, however it is reasonable to expect that he would receive some support from his family there. The Tribunal further considers that the difficulties the applicant may face are not such as to invoke Australia’s protection obligations.

Given the applicant’s return to Vietnam from May 2008 to June 2009, and his delay of 8 years in applying for protection from 2009 to 2017, the Tribunal considers it is reasonable to conclude that the applicant did not fear targeting and harm for any reason in Vietnam.
The Tribunal notes the additional information the applicant provided in the pre-hearing form in relation to his claims for protection, and considers it is reasonable to conclude that the applicant does not fear targeting and harm for any reason in Vietnam. Rather, the applicant has established a life in Australia over the past 14 years, has been living with family members who have become Australian citizens, has recently remarried and is seeking to remain and work in Australia for those reasons
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
30.1.The applicant is a citizen of Vietnam and non-citizen in Australia.
30.2.The applicant has no credible claims for protection under the refugee or complementary protection criterion set out in the applicable law.
30.3.If the applicant is returned to Vietnam, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
30.4.There do not exist 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 the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.

[2023] AATA 4547

26 October 2023

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Standing