1814296 (Refugee)

[2024] AATA 3590

1814296 (Refugee) [2024] AATA 3590 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814296

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:16 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 May 2024 at 11:30am

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – failed asylum seeker – threats from money lenders – fear of detention – harassment by police – corruption by government officials – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

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 review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 7 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.

3. The applicant appeared before the Tribunal on 22 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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 at the end of this decision.

8. 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 at the end of this decision.

   Mandatory considerations

9. 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.

   CLAIMS AND EVIDENCE

   Background

10. The applicant is [an age]-year-old female born in Nghe An, Vietnam. She grew up with her parents, [and specified family members]. The family was supported by her father who worked in [industry 1] until 2013 when he became ill following which he supported the family as a subsistence farmer. The applicant said that her [a sibling] has a disability and [is] supported by [their spouse].

11. The applicant gave evidence that she completed [School] when she was [age] years of age following which she travelled to Australia to complete an English course and tertiary studies at [age] years of age.  The applicant travelled to Australia on a [Student] Visa [in] September 2013 valid until [August] 2017. The applicant said that she studied an English course [and other specified courses].

12. In Australia, the applicant gave evidence that she initially worked in a [business 1] and has worked in a [business 2] for approximately 6 years to support herself.  The applicant said that she sends money back to her family in Vietnam when possible to support her [sibling’s] education and her [sibling] who is disabled.

13. The applicant told the Tribunal that when she left Vietnam she thought she would be able to remain in Australia permanently following her studies. The applicant’s student visa expired [in] August 2017 and on 7 September 2017 she applied for a Subclass 866 Protection visa.

14. The Tribunal accepts the above matters to be true.

    Protection visa application

15. In the protection visa application, the applicant claimed that her parents were farmers and were constantly bullied and harassed by the police and the government for money and farming crops. She stated that when her father became ill and stopped making payments, they started to harass and threaten her.  She said the family were constantly subject to harassment, discrimination and bullying by the police and government.  The applicant claimed that on return to Vietnam she will be imprisoned because she has escaped Vietnam and will be labelled a traitor.

16. There is no record on the Departmental file that the applicant was interviewed. The delegate refused the applicant a protection visa on 26 April 2018 on the basis that the applicant is not a person to whom Australia owes protection.

    Review application

17. The applicant applied to the Tribunal for review of the delegate’s decision on 17 May 2018, with the assistance of a representative.

18. On 10 November 2023 the Tribunal wrote to the applicant inviting her to provide any additional information in support of her application. On 13 November 2023, the applicant returned the pre-hearing form which repeated the claims set out in her protection visa application.

19. On 22 April 2024 the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Vietnamese interpreter. The applicant’s migration agent did not attend the Hearing. The applicant told the Tribunal that the migration agent was no longer assisting her. The Tribunal received an authority to change the authorised recipient from the applicant post-hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

21. The applicant travelled to Australia on an apparently genuine Vietnamese passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Vietnam and has been assessed on that basis by the Department. The Tribunal finds she is a Vietnamese citizen and has assessed her claims against Vietnam as the country of nationality and the ‘receiving country’ for the purposes of s.5(1).

    Analysis, reasons and findings

    Corruption

22. In the protection visa application, the applicant claimed that she feared return to Vietnam because she and her parents were being harassed and bullied by the police and government authorities to give them money and farming crops. At hearing, the applicant said that her mother was a housewife. She said that her father had worked in [industry 1] until he became unwell in 2013 and then supported the family as a subsistence farmer after he could no longer earn an income working in [industry 1].  When asked at hearing why she left Vietnam, the applicant told the Tribunal that her father had been threatened by money lenders about paying very high interest and the police would not be able to protect her. The applicant said she did not know the amount of the loan or the interest as she had very little communication with her parents since she came to Australia.

23. The Tribunal raised with the applicant that in her visa application she stated that she feared the police and the government authorities who were requesting money and farming crops and that this was different from her evidence at hearing that she feared money lenders. The applicant responded that she had told the representative assisting with the visa application that she could not return to Vietnam because she feared harm from money lenders who her father had borrowed money from because her father could not repay the debt.

24. In respect of the applicant’s claims to fear corrupt police and government officials requesting money and crops, DFAT advises that a 2019 Transparency International survey on corruption found that more than 61 per cent of Vietnamese people had paid a bribe to police in the last 12 months, however, notes that a distinction should be made between high- and low-level corruption. Police corruption may take the form of ‘coffee money’, a small payment at the side of the road, which may in turn be paid to superiors or other parts of Government as part of a patronage network. This may be seen by people as the ‘way things are’ and not necessarily recognised as corruption. High-level corruption, including payments by organised crime or in politics, is much less tolerated. In-country sources told DFAT such matters are likely to be investigated and severely punished.[1]

    [1] ‘DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022 at 5.4 to 5.5.

25. Further country information suggests a decline in corruption in Vietnam. Transparency International ranked Vietnam 77th out of 180 countries in its Corruptions Perception Index 2022, an improvement from previous years (80th in 2021 and 104th in 2020).[2] Public perceptions of corruption has declined, however it remains a significant concern for the general population.[3] Bribes for public sector employment persist in both poorer and wealthier provinces, and less than 75 percent of respondents in a 2022 United Nations Development Program (UNDP) assessment believe their government is genuinely committed to combating corruption.[4] Acknowledging the rising public discontent with corruption, CPV leaders and government officials have taken steps, resulting in an upswing in corruption-related arrests.[5] Several senior officials have faced disciplinary action or imprisonment.[6] However, the enforcement of anti-corruption laws is still often selective and tied to political rivalries.[7] Ongoing corruption is evident still in various sectors, including land transfers, financial banking, natural resource mining, and public investment sectors.[8]

    [2] ‘2022 Corruption Perceptions Index – Vietnam’, Transparency International, 2022, p.1.

    [3] 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022,

    [4] 'The Viet Nam Provincial Governance and Public Administration Performance Index: Measuring Citizens Experiences, 2022.', United Nations Development Program (UNDP), 1 April 2022, p.xxi.

    [5] 'Freedom in the World 2023 - Vietnam', Freedom House, 13 March 2023, C2.

    [6] 'BTI 2022 Country Report: Vietnam', Bertelsmann Stiftung, 23 February 2022, p. 5; 'Freedom in the World 2023 - Vietnam', Freedom House, 13 March 2023, C2; ‘Country

    [7] 'Freedom in the World 2023 - Vietnam', Freedom House, 13 March 2023, C2, 20230417082342; ‘Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 27.

    [8] ‘Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 27, 20230322091151; 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.2.11, p.8.

26. Having considered the above country information and the applicant’s circumstances, the Tribunal does not consider that it is plausible that the applicant’s father was targeted for bribes by the police or government authorities because he was a farmer or for any other reason, nor that the applicant was targeted for harm because her father stopped paying the police or government authorities. The applicant’s evidence at hearing was inconsistent with claims that her father was targeted by the police and government authorities, and she stated that he was not a commercial farmer but had worked in [industry 1] and been a subsistence farmer to support the family when he could not earn an income. At hearing, the applicant did not give evidence as to any requests for money from the police or government authorities, nor that she feared harm on return for this reason. The Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicant for reason of corrupt police or government authorities targeting her family for money or farming crops on return to Vietnam now or in the foreseeable future.

    Loan owed to money lenders by the applicant’s father

27. The Tribunal has also considered the applicant’s claim raised at hearing that she fears money lenders who her father borrowed money from in approximately 2013 will target her on return to Vietnam. The applicant was unable to provide specific details about this loan such as the amount or interest rate, nor regarding the attempts made by money lenders to recover this loan. She told the Tribunal that she did not know any details about this loan because she did not have communication with her family since coming to Australia. Given the applicant’s limited knowledge of the loan, that it has now been more than 11 years since she claims that the loan was taken out by her father and that the applicant did not claim that any action had been taken against her father or herself to recover the loan or payments, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicant on return to Vietnam now or in the foreseeable future because of claimed debts owed by her father to money lenders at high interest.

    Loan owed to money lenders by the applicant

28. At hearing, the applicant made new claims that had not been raised before the original decision maker.  The applicant gave evidence that she also feared returning to Vietnam as she had borrowed [amount] VND to facilitate her travel to Australia when she was [age] years of age. She said that she was introduced to money lenders by a woman named [Ms A] who paid to facilitate her travel as a student to Australia. The applicant gave evidence that she does not know the terms or interest payable on the loan because she does not have the loan documents. She said that she did not make any repayments towards the loan. She told the Tribunal that she feared she would be harmed on return to Vietnam because she could not repay the loan. Asked if the money lenders had taken action to recover the funds from her or her family in Vietnam, the applicant said that they had been to her parents home many times and they told her she was in Australia permanently. She said most recently they had attended at her parent’s home approximately 3 months ago. Asked what she feared would happen to her on return to Vietnam, the applicant claimed that she fears that she will be imprisoned on return because she cannot pay the debt or she will be beaten by the money lenders.

29. The Tribunal raised with the applicant that s423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of the information or claim where it was not raised before the original decision maker, unless there is a reasonable explanation for not having provided the information earlier. The applicant responded that she did not mention this loan previously because she just wanted to go to Australia so much and at that time she thought she could receive a good education and would be able to stay. She said that the course she completed in [occupation 1] was not at the level to be eligible for her to apply to remain in Australia and she could not afford to complete a higher level [occupation 1] qualification.  The Tribunal has considered that the applicant lodged the protection visa application in 2017 after having spent 4 years in Australia and does not accept that her wish to travel to Australia in 2013 is a reasonable explanation not to raise this claim before the original decision maker. The Tribunal finds that this is not a reasonable explanation for the applicant not raising the new claims before the initial decision was made and draws an adverse inference as to the credibility of the information and claims.

30. The Tribunal has considered the applicant’s evidence that she owes a debt for facilitating her travel to Australia and finds that it is not reliable or credible. The Tribunal has based this finding on the vague, inconsistent and implausible nature of the applicant’s evidence.  The applicant’s claim is inconsistent with the claims made in her original visa application which stated that she feared harm because of her father’s circumstances and was raised for the first time at hearing. The applicant also originally stated at hearing that she had no contact with her family in Vietnam as a reason she had no details about her father’s loan, and after raising the new claim gave evidence that she knew the loan sharks had attended at her parent’s home over the last 11 years and as recently as 3 months ago because her parents had told her.  Further, the applicant’s evidence of the loan was vague and lacking in detail in that the applicant claimed that she only knew the amount of the loan to be [amount] VND but that she did not know the repayment or interest arrangements because she had lost the loan documents.  The Tribunal also does not accept as plausible that money lenders would attend at her parents home regularly over the last 11 years and continue to request payment without any further action taken to attempt to recover the funds when the applicant claims to have taken the money and never made a repayment.  The Tribunal also finds it implausible that she would make no repayments if she believed that her family was at risk when she gave evidence that she was able to send money to her support her [sibling’s] education and on occasions also sent money to support her disabled [sibling]. For these reasons, the Tribunal finds the applicant’s evidence that she owes a loan to money lenders in Vietnam to be unconvincing.  The Tribunal does not accept that the applicant took out a loan from money lenders in Vietnam. Having found that she does not owe a loan to money lenders, it follows that the Tribunal does not accept that she will face harm such as being imprisoned or beaten because of the claimed loan on return to Vietnam. Therefore, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicant for reason of her owing money to money lenders on return to Vietnam now or in the foreseeable future.

    Conditions for failed asylum seekers

1. In the protection visa application, the applicant also stated that she will be imprisoned on return to Vietnam because she would be considered a traitor for leaving Vietnam.  At hearing, the applicant claimed that she would be imprisoned because she owed money to loan sharks which the Tribunal has not accepted for the reasons outlined above. The Tribunal also asked the applicant about her claim to be considered a traitor for leaving Vietnam and the applicant explained that she meant because she had claimed protection in Australia against Vietnam.  The Tribunal discussed with the applicant that DFAT reports the circumstances for returnees in Vietnam are 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[9] and being a failed asylum seeker is generally not stigmatised.[10] DFAT reports that returnees may face difficulties obtaining employment or accessing social services,[11] however, the Tribunal considers that the applicant will have accommodation and support from her family on return. She has also been employed for over 11 years in Australia such that she is likely to be able to find employment on return to Vietnam. Based on the country information and the applicant’s circumstances, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant being a failed asylum seeker on return to Vietnam now or in the foreseeable future.

   [9] DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022 at 5.31.

   [10] DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022 at 5.34.

   [11] DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022 at 5.32.

2. For the above reasons, and having considered the applicant’s claims individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm on return to Vietnam for the reason of her race, religion, nationality, political opinion, membership of any particular social group or any other reason. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the purposes of s5J of the Act.  The Tribunal finds that the applicant is not a refugee for the purposes of s.5H(1) and therefore that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

3. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, the Tribunal is not satisfied 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 she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

4. 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

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

   Melissa Haag
   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.

   …

   
   

para.2.11, p.8; ’2022 Corruption Perceptions Index – Vietnam’, Transparency International,
2022, p.1.

Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 27.