1818691 (Refugee)

1818691 (Refugee) [2021] AATA 5136 (29 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1818691

COUNTRY OF REFERENCE: Vietnam
MEMBER:Paul Windsor
DATE:29 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 November 2021 at 11:44 am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – victim of loan sharks – fear of physical harm – fear of killing – Formosa environmental disaster – father’s fishing business – studies ceased – period of unlawful residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 26 May 2017.
In his protection visa application the applicant indicated he was born on [date] in [District 1] in Ha Tinh province, Vietnam. He indicated he is ethnic Kinh, does not practise any religion, and has never married. He stated he departed Vietnam legally [in] November 2012, and arrived in Australia [in] November 2012, entering on a Student visa.[1]
[1] See the Departmental file.
In a statement included with his application, the applicant stated that he is fearful that if he returns to Vietnam he will be caught, threatened and harmed by money lenders in relation to money he claims his father borrowed but can’t repay.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding that the applicant’s claims to fear harm are not for one or more of the five reasons set out in s.5J(1)(a) of the Act and therefore the applicant is not a refugee as defined in s.5H of the Act. In relation to the complementary protection criterion, the delegate, after considering country information, found there were effective protection measures available to the applicant in the receiving country (the Tribunal notes this is an incorrect test for complementary protection purposes, as s.36(2B)(c) of the Act requires that the decision maker be satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm).
The applicant applied to the Tribunal for review of this decision on 27 June 2018. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
On 15 November 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it by video conference using Microsoft Teams at 9:00 am on 30 November 2021 to give evidence and present arguments relating to the issues arising in his case.
On 19 November the applicant responded to the invitation to attend a hearing, returning a completed ‘Response to hearing invitation form’. In the response form the applicant indicated that he will not participate in the hearing, and consents to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The Tribunal wrote to the applicant on 22 November 2021 advising that it had received his response to the hearing invitation indicating that he would not be participating in the hearing and consenting to the Tribunal making a decision on the papers. He was advised that the Tribunal had cancelled the hearing scheduled for 30 November 2021 and will proceed to make a decision on the papers without taking further steps to allow him to appear before it.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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
The applicant’s claims, as set out in an unsworn/undated ‘statutory declaration’ included with his protection visa application, are summarised as follows:
·His family had been badly affected by Formosa which polluted their sea and makes the fishermen, like his father, become jobless.
·His father had been earning a good income and supporting the whole family. He borrowed money to update equipment, buy new ‘ships’ and hire more workers.
·The effect of the Formosa incident was sudden and his father could not fish anymore as the sea was so polluted. The fish were mostly dead and people did not want to buy live fish as they were afraid of the toxins Formosa had put in the sea. The government also prohibited fishing until they found out why the sea animals were dying.
·It took months for the government to force Formosa to pay compensation and not everyone could get it. Big companies and that could hire lawyers were paid but many of the small and medium fisherman like his father could not get any compensation. His father came to meet with Formosa many times but was never paid any compensation and was treated badly.
·His father became depressed. He could not meet his loan repayments, pay wages pay for the applicant’s overseas study as well as meet his family’s living expenses. He became partly disabled and the applicant’s mother had to stay home to care for him. This put the family under a lot of difficulties.
·His sister is also a disabled person, having had mental illness since birth. The family could not afford her medical treatment anymore and her illness rapidly worsened. She starts screaming, harming herself and throwing things. His younger brother, who is in primary school, had to go to live with his grandparents to avoid money lenders and his sister.
·His father was put under pressure to pay the money lenders but could not pay them anything. As they are poor people they were not able to borrow from banks and had to use money lenders, most of whom are gangsters. The interest rate is too high and multiplies by the day.
·Consequently, the money lenders started to threaten his family. The threw dirty things at the house, put paper with bad words on the doors and walls and threatened his sister, making her condition worse, and his younger brother.
·Unfortunately, money lenders know that he is studying in Australia. They want to catch him and force him to pay for the loan. His parents told him they bring guns to the house searching for him, ask were he lives, whether he sends money home and when he will be back to pay the money lenders. They stay in front of the house everyday and ask everyone who comes to visit.
·At the moment, the amount of money owed is too big. The government has refused to help them, saying it is a private matter. They can’t sell their house and move elsewhere as the money lenders threatened his parents wherever they go and are always in front of their house.
·He is the only hope of his family at the moment. Because of that, he is the only person being searched for by money lenders to pay his parents’ debt. He fears if he returns to Vietnam the money lenders will catch him, threaten him and make him die immediately.
The applicant included references to two internet links to news stories regarding the leaking of toxic waste-water by Formosa Steel in 2016.
Findings and reasons
Identity
On the basis of the copy of his Vietnamese passport submitted to the Department,[4] the Tribunal accepts that the applicant is a national of Vietnam and that his identity is as claimed. The Tribunal accepts that Vietnam is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[4] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Background
The internet links to news stories provided by the applicant indicate that a steel plant owned by Taiwanese firm Formosa Plastics was responsible for a toxic discharges which resulted in massive fish deaths that ‘decimated tourism and fishing in four provinces’ in Vietnam, including in Ha Tinh province, where the steel plant is based. The Guardian reported that an estimated 70 tonnes of dead fish washed ashore along more than 200 km of Vietnam’s central coastline in early April 2016, sparking protests across the country after the company denied any wrongdoing. The article comments, however, that a government minister told reporters that Formosa Ha Tinh Steel Corp, a subsidiary of Taiwan’s Formosa Plastics Groups, admitted it had caused the environmental disaster and pledged $500 million to clean up the environment and compensate affected people. The chairman of Formosa Ha Tinh Steel, Chen Yuan-Cheng, also apologized in a video shown at a news conference. The article comments that a spokesman for the Vietnam Fishery Association said it was a positive that the government was holding Formosa to account, but said much more needs to be done to restore the health of the environment in the four affected provinces, noting there are no fish or shrimp for fishermen to catch, seafood farming is impossible and the tourism industry has also been affected. He reportedly commented that most fishermen can’t easily switch to another occupation as the only skill they know is fishing.
The DFAT Country Information Report comments that despite legal restrictions and often-severe responses from authorities, citizens in Vietnam do continue to protest, generally in relation to single issue, livelihood-related issues, or occasionally in relation to anti-Chinese sentiment. It notes that one of the more significant protests in Vietnam in recent years occurred following the April 2016 Formosa environmental disaster, in which toxic discharge from a steel plant poisoned a large stretch of Vietnam’s central coastline. The report states that hundreds of residents from the central provinces protested regularly in the months following the disaster, with some protesters reportedly beaten and arrested by police. Police also reportedly stopped some protesters from marching from central Nghe An Province to Ha Tinh Province to submit their compensation claims and that activists and their families in Nghe An Province reported an increased incidence of harassment and assault by local authorities in relation to the Formosa disaster protests.[5]
Assessment
[5] DFAT Country Information report, Vietnam, 13 December 2019, section 2.4.
The Tribunal accepts there was an environment disaster in April 2014 which affected four provinces of Vietnam, including the applicant’s home province of Ha Tinh, caused by toxic waste-water released from the Formosa Ha Tinh Steel Corp steel plant. For the reasons set out below, however, the Tribunal finds that the applicant’s claim that his family was badly affected by the Formosa disaster is vague, internally inconsistent and not supported by any corroborating evidence.
Firstly, the applicant has not provided any evidence to support his claims that his father was a fisherman, had been successful, earning a good income and being able to support his family, including supporting the applicant to study in Australia, who borrowed more money to update equipment, buy new ‘ships’ and hire more staff. The applicant has not provided any supporting statements from family members, including his father, or independent sources, to corroborate these claims. He has not provided any documents detailing his father’s fishing fleet, equipment, loans, turnover and profit, staffing and payroll. He has not provided any photographic evidence, such as images of his father’s claimed fishing boats and equipment and staff.
Second, the applicant claims his father sought to meet with Formosa on many occasions to seek compensation, but has not provided any documentary or photographic evidence in support of this claim. He states that they treated his father ‘badly’ but has not elaborated on what this involved.
Third, the applicant states that his father became depressed and suggests that his father had a complete mental breakdown, becoming ‘disabled’ and unable to care for or even feed himself, but has not provided copies of any medical reports in support of this claim. Nor has the applicant provided any evidence in support of his claim that his sister has had a mental illness since birth, and that her condition has deteriorated as a consequence of the family no longer being able to afford treatment for her condition.
Fourth, contrary to the applicant’s claims that his father’s had earned a good income before the Formosa disaster, had invested money in ‘ships’ and equipment, and sought to borrow more money ‘as the money he got from fishing was so good’, he states that his father borrowed from ‘money lenders’ at high interest rates because they are poor people who could not apply to borrow from banks. The applicant has not explained this contradiction or why his father, if previously doing very well, could not obtain loans from banks.
Fifth, the applicant states that his family was threatened by money lenders, but has not provided any evidence of this, such as copies of photographs of the dirty things he claims they threw at the family home or the papers with ‘dirty words’ he claims were put on their doors and walls.
Sixth, the applicant has not provided any evidence, such as copies of threat or demand letters or messages, to support his claim that money lenders know he is in Australia and now want to catch him and force him to repay the claimed loan.
Seventh, the applicant states that the money lenders know he is studying in Australia at the moment. This, however, is not the case. In his protection visa application, the applicant indicated that his student visa was cancelled on 9 January 2015 because he did not attend class and his ECOE (Electronic Confirmation Of Enrolment) was cancelled and this was reported to the Department. He indicated that the only study he did in Australia was from November 2012 until January 2013, over which three month period he indicated he completed an English language course. It seems, therefore that the applicant was minded to remain in Australia well before the Formosa Steel toxic waste-water spill in April 2016, even though he was no longer studying from February 2013 and his Student visa subsequently was cancelled, and he became an unlawful non-citizen, in January 2015. He remained in Australia without regularising his immigration status until he made a protection visa application in May 2017. The applicant has not provided any information regarding why he did not leave Australia when he ceased studying or when his student visa was cancelled, and what he has been doing in Australia since that time. He indicated in his protection application, lodged on 26 May 2017 (over two years after his student visa was cancelled and over a year after the Formosa incident) that he was unemployed, and he has not provided any details of a work history either in Vietnam or in Australia.

Eighth, the applicant claims that the money lenders bring guns to his family home searching for him and stay in front of the house every day, but also has provided no independent corroborating statements or photographic evidence in support of these claims.
Nineth, the applicant states that the amount of money owed is ‘too big’ and his parents can’t sell their house, but has not indicated how much his parents’ owe, or why they could not have sold assets, such as the fishing boats and equipment he claims they bought, as well as their house, if necessary, to pay off debts.
Lastly, the applicant has not provided any statement updating the Tribunal on his claimed circumstance since his protection visa application was lodged on 26 May 2017, over four years ago.
These are all matters that the Tribunal would have questioned the applicant about in detail had he attended a hearing.
Having carefully considered the available evidence, the Tribunal is not satisfied that the applicant’s father was a formerly successful fisherman who became highly indebted to money lenders following the Formosa toxic waste-water spill in April 2016. The Tribunal does not accept that money lenders are now pursuing the applicant to repay his father’s debt. Accordingly, the Tribunal does not accept that, should the applicant return to Vietnam, he will be caught by money lenders, threatened, harmed or killed.
As the Tribunal finds the applicant is not being sought by money lenders and would not be sought by, threatened or harmed by money lenders should he return to Vietnam, the Tribunal finds that he does not require the protection of the Vietnamese authorities.
Refugee criterion
Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from money lenders and/or their agents, or any other agency, organisation, group or individual, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from money lenders and/or their agents, or any other agency, organisation, group or individual.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
…

[2021] AATA 5136

29 November 2021

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Immigration

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