1814427 (Refugee)

[2024] AATA 1367

1814427 (Refugee) [2024] AATA 1367 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814427

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:8 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 08 April 2024 at 4:37pm

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – imputed political opinions - being perceived to hold views or information adverse to the interests of the Vietnamese Government as a result of his connection to his father – fear harm on return to Vietnam due to the circumstances of the first applicant’s father’s employment for the Government owned company – a real chance that authorities of the Vietnamese Government will seek to harm the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 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 dependant.

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 9 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Vietnam, applied for the visas on 24 July 2017. The delegate refused to grant the visa on the basis that the applicants were not persons to whom Australia owes protection.

3. The applicants appeared before the Tribunal on 29 February 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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 remitted.

    Country of nationality

11. The first and second applicants travelled to Australia on apparently genuine Vietnamese passports, copies of which are contained on the Departmental file. The third applicant was born in Australia to the first and second applicants. A copy of the third applicant’s Birth Certificate is on the Departmental file naming her parents as the first and second applicants, who are Vietnamese Citizens. They have at all times stated that they are citizens of Vietnam and have been assessed on that basis by the Department. The Tribunal finds the applicants are Vietnamese citizens and has assessed their claims against Vietnam as the country of nationality and the ‘receiving country’ for the purposes of s.5(1).

    The applicant’s personal background

12. The first applicant is a [age]-year-old male, of Buddhist religion, born in Ho Chi Minh City, Vietnam. He travelled to Australia on a Subclass 573 Higher Education student visa to complete tertiary studies on [date] June 2010. He completed a [qualification] in December 2011. He has most recently been working as a [occupation] in a regional area in Victoria for approximately 7 years.

13. The second applicant is a [age]-year-old female, of Buddhist religion, born in [location], Vietnam.  She travelled to Australia on a Subclass 573 Higher Education student visa to complete tertiary studies on [date] January 2010. She completed [a qualification] in March 2011. She has most recently been working in [a field] in a regional area in Victoria for approximately 8 years.

14. The first applicant and second applicant said that they met when they were studying in [Country 1] in 2009 and shared a house in Australia from the time the first applicant arrived in Australia as a student in June 2010.  They commenced a defacto relationship approximately one year later and had a marriage ceremony in Vietnam [in] December 2015.

15. The third applicant is a [age]-year-old female and is the child of the first and second applicants.  She was born in Australia on [date] and has been living in regional Victoria with her parents since she was born.  She is in [a grade] at Primary School.

16. The applicants lodged a combined protection visa application on 24 July 2017 and they have remained in Australia since that time.

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

    The applicant’s claims for protection

    Visa Application

18. In the visa application, the applicants provided a joint statement attached to the visa application outlining their claims. In summary, they detailed their migration and business background in Australia and claimed they had been trying to remain legally in Australia via various pathways. The statement claimed they were concerned about the quality of food, crime, education and child abuse, on return to Vietnam as their child was only a few months of age.

19. In respect of the first applicant, the claims were based on his political opinions and it was stated that his father’s employment with the Vietnamese Government company [Company 1] for over 30 years meant that he feared returning to Vietnam. At the time of lodgement of the visa application, the applicant stated that his father was still employed by the Vietnamese Government. The applicant provided limited detail about this claim in the visa application. He stated that the government company has a complicated system and a policy he disagrees with. He stated that he would be forced to work for the same company and be subject to pressure to engage in activities against his wishes.

20. There is no record in the Department’s file of the delegate having interviewed the applicants in respect of their protection visa application. The applicants provided a copy of the decision record of the delegate to the Tribunal.

21. On 9 May 2018 a delegate of the Minister for Home Affairs refused to grant the applicants protection visas on the basis that the applicants were not persons to whom Australia owes protection.

    Review Application

22. The applicants lodged the present application for review with the assistance of a representative on 18 May 2018.  On 15 March 2019, the Tribunal received correspondence that the first applicant was appointed to receive all correspondence regarding the review application.

23. A second application for review was also lodged with the Tribunal on 6 June 2018[1] which will be the subject of a separate Tribunal decision.

    [1] AAT File Reference 1816614.

24. On 10 November 2023, the applicants were invited by the Tribunal in a pre-hearing form to add to or update their claims for protection. In a response dated 23 November 2023, the applicant provided an updated submission and documents. In summary, the statement outlined the applicant’s migration history in Australia and updated his political opinion claims as they related to his father’s employment with the Vietnamese Government owned company [Company 1]. The applicants provided the following documents in support of their application:

    -Notice of Appointment of the first applicant father, ([Mr A]) as [Position 1] of [Company 1], signed by former [Position 2] of [Company 1], [Mr B].

    -Article dated December 2017 reporting the arrest of [Mr B].

    -Business card of [Mr A], naming him as [Position 1] of [Company 1].

    -Photographs of [Mr A] which the first applicant claims show him representing the Vietnamese Government owned [Company 1].

    -Award of commendation to [Mr A].

    -Medical Reports and photographs in respect of [Mr A] confirming a head injury he sustained in 2020.

    -Correspondence relating to defamation action taken against claimed Vietnamese [social media] page operators in Australia, linked to the applicants to the first applicant’s father.

25. The applicants appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. The first applicant provided detailed evidence as to his claim to fear harm on return to Vietnam in support of the above claims as referenced in the Tribunal’s reasons below. The Tribunal also received oral evidence from the second applicant. The second applicant gave evidence regarding her father-in-laws circumstances and that she feared that her husband would be targeted for harm on return to Vietnam by the authorities. The second applicant also gave evidence that her [age]-year old daughter would find it very difficult to return to Vietnam as she was born in Australia and speaks limited Vietnamese. 

    Analysis, Findings and Reasons

26. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

27. At hearing, the first applicant gave evidence that at the time of lodging the protection visa application in July 2017, his father had earlier been promoted to [Position 1] of the Vietnamese Government owned [Company 1] company and had told the applicant it was not safe to return because he feared Vietnamese Government officials may falsely allege corruption against him in the organisation. He also told the applicant that he and his mother had earlier been threatened to pay money to [Company 1]. In the visa application, the applicants claimed to fear harm on return to Vietnam due to the circumstances of the first applicant’s father’s employment for the Government owned company [Company 1].  The applicant told the Tribunal that his father had told him that it was not safe to return to Vietnam and that the applicant should try to remain in Australia.  The applicant told the Tribunal that he had hoped to remain in Australia via a number of skilled and business visa options but had not been successful following which he applied for a protection visa for himself and his family.

28. The applicant told the Tribunal that since the lodgement of the protection visa application in July 2017, as his father had pre-empted, his father and senior colleagues were accused of corruption against the interests of the Vietnamese Government owned company, [Company 1]. He said that his father had been employed by a subsidiary company, [Company 1] and was fired from his position in late 2017 or early 2018, although he was not charged with any offences as a number of other executives were.  DFAT reports that there was a large anti-corruption campaign in Vietnam in 2017 and 2018 which saw thousands of investigations and prosecutions that included senior government officials and senior business leaders.[2]  The Tribunal notes there was also extensive reporting of proceedings specifically against executives of [Company 1] at the relevant time, consistent with the applicants claims.[3]

    [2] DFAT Country Information Report Vietnam, 11 January 2022.

    [3] [Source information deleted].

29. The applicant gave evidence that his father was a member of the Vietnamese Communist Party and had been a senior figure in the Government owned company [Company 1] for over 30 years, together with [Mr B] who was charged in the corruption trials.[4] The applicant provided a commendation award given to his father [and] photographs which the first applicant claims show his father with other senior Government executives. The applicant also provided a copy of a document evidencing the appointment of his father to the position of [Position 1] executed by [Position 2], [Mr B].

    [4] [Deleted].

30. The Tribunal accepts that the first applicant’s father was a senior executive in a Vietnamese Government owned business [Company 1] or its subsidiary from which he was fired in approximately 2017 or 2018, and that this organisation has been the subject of corruption investigations resulting in charges against numerous executives and senior Government officials in Vietnam.

31. The applicant gave evidence that although his father was not charged, since he was fired from his position, he has continued to be monitored by Vietnamese Government officials since 2018 until the present time. The first applicant claims that the Government officials have continued to visit at his parents home in Vietnam and monitor, harass and threaten his father and mother as a warning to his father not to divulge confidential information about corruption involving [Company 1]. The applicant claims that his father is aware of information pertaining to corruption involving sensitive Government land deals. DFAT reports protests in Vietnam related to accusations about corruption in development and highlights a recent example was widespread anti-China protests related to fears that the Chinese Government would buy land under reformed rules.[5] DFAT also notes that land-use protests are sensitive.[6] The country information is consistent with the applicants claim as to the nature of the sensitive information held by the applicant’s father being of interest to the Vietnamese Government and [Company 1] to protect from being divulged.

    [5] DFAT Country Information Report, Vietnam, 11 January 2022 at 3.51.

    [6] DFAT Country Information Report, Vietnam, 11 January 2022 at 3.51.

32. Having accepted the applicant’s evidence that his father held a high-level position in the Government-owned [Company 1] or subsidiary, the Tribunal considers that it is reasonable to expect him to have knowledge of sensitive information of importance to the Vietnamese Government. The Tribunal also accepts that he ceased employment with the organisation in late 2017 or early 2018 but may still be of interest to the Vietnamese Government authorities to monitor his activities where he has confidential knowledge of the activities of the organisation which could be adverse to the interests of the Vietnamese Government.

33. The applicant gave evidence that following his father being fired from [Company 1], his father travelled to Australia to visit him and his family for approximately 2 months. Following his father’s visit, the applicant claims that he was later targeted by an online group which originated in Vietnam and shared false allegations with an associated Vietnamese [social media] group in Australia. The applicant claimed this group targeted him by way of an implied threat to his father, and posted a photo of his parents connecting him to his father. The applicant provided correspondence from his defamation lawyer in Australia to the operators of the [social media] pages in Australia and in Vietnam threatening legal action which resulted in the removal of the posts he said falsely alleged that he had been involved in defrauding international students to come from Vietnam to Australia. The applicant said that he has not been targeted by this group since he took legal action in 2018, however, he stated that he fears if he returns to Vietnam these allegations will be used by authorities as to target him as a way of threatening his father. The Tribunal accepts that allegations were made against him online and that a photo of his parents being included and the timing of the [social media] post, originating from Vietnam, supports his claim that he was targeted because of his connections to his father.

34. The applicant further gave evidence that in 2020 his father was intending to travel to Australia to visit and he had purchased his ticket planning to use his APEC Business Travel Card which was still valid following his previous employment with the Vietnamese Government owned company [Company 1].  The applicant said that shortly prior to his father’s departure from Vietnam, his father was invited to a private [Company 1] event, immediately following which he was admitted to hospital suffering a substantial head and brain injury.  The applicant presented medical reports and a photograph of his father’s injuries.  The applicant stated that his father’s cognitive function has been impaired since the incident and he will not discuss what happened to him nor are there official reports as to what the applicant alleges happened. However, the applicant gave evidence that he and his family believe that his father was assaulted by authorities of the Vietnamese Government to prevent him from travelling to Australia and to threaten him not to divulge sensitive information of corrupt activities of [Company 1]. The applicant also gave evidence that the Vietnamese Government authorities have continued to visit the home of his mother and father in Vietnam since his father sustained the brain injury in 2020 up to present, with the most recent visit to their home being in February this year. The Tribunal found the applicant to be a credible witness. The Tribunal accepts that the applicant’s father was intending to travel to Australia in 2020 and sustained a head injury following an attendance at a [Company 1] event. The Tribunal accepts the applicant’s evidence that Vietnamese Government authorities have continued to monitor the first applicant’s father from 2018 when he ceased employment with [Company 1] or its subsidiary up until the present time.

1. In view of the above findings, the Tribunal accepts there to be a real chance that authorities of the Vietnamese Government will seek to harm the applicant should he return to Vietnam.  In making that assessment, the Tribunal has had regard to the relevant independent country information, evidence of past incidents of violence against the applicant’s father in 2020 and of monitoring and threats against the applicant’s father continuing up to the present time, the applicant’s fathers political profile as a former [Position 1] of the Vietnamese Government owned [Company 1] company or its subsidiaries, as well as the actions taken online against the first applicant to connect him to his father and making of false allegations against the applicant online. I accept that the harm may include a threat to his life or liberty or significant physical harassment and physical ill-treatment of the applicant such as would constitute serious harm for the purposes of s5J(5). For these reasons, the Tribunal finds there to be a real chance the applicant will suffer serious harm from the authorities of the Vietnamese Government if he returns to Vietnam now or in the foreseeable future.

2. In considering whether the harm the applicant fears from the authorities of the Vietnamese Government is for reasons of race, religion, nationality, membership of a particular social group or political opinion, the Tribunal considers that it is for the reason of his imputed political opinions as being perceived to hold views or information adverse to the interests of the Vietnamese Government as a result of his connection to his father.  The Tribunal finds that the serious harm would be directed at him either to silence him from divulging information or views against the interests of the Vietnamese Government or the Vietnamese Government owned [Company 1] company.  The Tribunal accepts that the harm feared is for reason of the first applicant’s imputed political opinions for the purpose of s5J(1)(a).

   Conclusions

3. For the reasons set out above, the Tribunal accepts that if the first applicant were to return to Vietnam now or in the foreseeable future, there is a real chance that the first applicant would be persecuted for one of the reasons in s5J(1)(a) and therefore meets the criterion set out in s.5J(1)(b).

4. The Tribunal finds that state protection is not available to the first applicant and the real chance of persecution relates to all areas of Vietnam as the perpetrator of harm in this case includes the Vietnamese state. Therefore, the applicant meets the criterion set out in s.5J(1)(c) and s.5J(2).

5. The Tribunal also finds that any modification of the first applicant’s behaviour to avoid harm in Vietnam for reasons of his imputed political opinion would require him to conceal information or views adverse to the Vietnamese Government and thereby modify his political beliefs. Therefore, he cannot be required to take steps to modify his behaviour, such as by returning to Vietnam and altering or concealing his imputed political beliefs, so as to avoid the feared persecution pursuant to s.5J(3).

6. The Tribunal finds that the first applicant’s imputed political opinions are the essential and significant reason for the harm feared, that it involves serious harm and systematic and discriminatory conduct. Therefore, the applicant meets the criterion set out in s.5J(4).

7. For these reasons, the Tribunal accepts the first applicant has a well-founded fear of persecution for reasons of his political opinions if he returns to Vietnam now or in the reasonably foreseeable future in accordance with s.5J and is therefore a refugee pursuant to s.5H(1).

8. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

9. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicants are the wife and daughter of the first applicant and are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

10. The Tribunal remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

    (ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    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.

    …