1819171 (Refugee)

1819171 (Refugee) [2022] AATA 1121 (5 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819171
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Sean Baker
DATE:5 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 April 2022 at 12:42pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from creditors and general economic conditions – borrowed from loan shark to support family business – credibility – undetailed, inconsistent and implausible claims and evidence – size and conditions of loan – no harm to family members – delay in applying for protection – applied just before student visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 dependants.
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 25 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 3 November 2016. The delegate refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligation pursuant to s.36(2)(a) or s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal by video and telephone on 19 and 28 January 2022 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
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, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant fears harm in Vietnam for reasons which either make him a refugee, or otherwise engage Australia’s protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born [Date] in [Hai Chau District], Vietnam. He is a [Age] year old male of Vietnamese nationality. In his protection visa application he states he is of Vietnamese Ethnicity and the Buddhist faith.
In his written application he states his family is comprised of his parents and an older sister, all of whom remained in Vietnam, he maintained contact with them through social applications.
The applicant claims to be able to speak, read and write in the Vietnamese and English languages.
In his application the applicant stated his only education was the completion of High School in Vietnam, and to never have been employed.
I find the applicant is a national of Vietnam and that he does not have a right to enter and reside in any other country.
Migration and Visa History
In his application the applicant claims to have not travelled to any other country besides Australia and Vietnam.
His visa and migration history in Australia is as follows
·He was granted a TU 573 Higher Education Sector Visa on 6 June 2013 and first arrived in Australia [in] June 2013. While still holding that visa he departed Australia [in] February 2014 returning [in] March 2014.
·On 29 April 2015 he lodged an application for a VC 485 Graduate Work Stream visa which was refused on 3 September 2015.
·[In] March 2016 he departed Australia still holding a TU 573 visa and returned [in] April 2016.
·On 12 August 2016 he applied for a XA 866 visa, the application was found to be invalid on 29 September 2016 pursuant to s.46(2A) of the Act.
·On 16 August 2016 he was granted a Bridging Visa A associated with his XA-866 application
·On 23 August 2016 his TU 573 visa was cancelled.
·On 3 November 2016 the applicant lodged the present application with the department.
Summary of claims
The applicant’s written claims at the time of application can be summarised as follows:
·The applicant fears returning to Vietnam.
·He left Vietnam because of distrust of the judiciary and government, poor government system, poverty and unemployment. He was living in harsh conditions and had to borrow money from relatives which he could not repay. He lives in mental distress and fear as many people who have debt problems like him are injured and killed
·He thinks if he returns to Vietnam he will be caught by his creditors resulting in his injury or death.
·He had experienced harm in Vietnam in the form of verbal threats and the harsh living conditions. He claimed he sought help within Vietnam but nothing happened as ‘they’ consider it a personal problem.
·He states he does not wish to relocate within Vietnam as it is a socio-economic problem and he will experience the same hardship anywhere inside the country
·He thinks he will be harmed or mistreated if he returns due to the harsh conditions and the discrimination suffered by [Country 1] women.
·He cannot seek assistance from the Vietnamese authorities or relocate within Vietnam due to the problem being rooted in socio economic issues.
The applicant was not interviewed by the delegate and did not submit further material to either support or expand on his claims.
In correspondence with the Tribunal the applicant indicated they would supply a written statement prior to the hearing. The applicant did not do so.
Consideration 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 him or her. 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).
The applicant gave evidence at two hearings. He left the first hearing abruptly when his phone battery ran out, and a further hearing was then held. Over the course of these hearings, I developed significant concerns with his claims. I put these concerns to him at those hearings but despite being given an opportunity to respond, the concerns remain.
The loan – lack of detail and implausibility
The most significant concern relates to the evidence given by the applicant around the claimed loan. This evidence was undetailed and vague.
The applicant’s central claim at the hearing was that he took out a loan to support the family business – a [business] that his mother ran with the help of his older brother. He claimed that his brother had had to previously take out a loan from loan sharks, and that when he returned to Vietnam in March – April 2016, the applicant had taken out a loan for the family on the basis that he was living in Australia. The applicant claimed he had taken out a loan from the loan shark of [amount] VND. I confirmed this with the applicant a number of times, and also noted that this amounted to approximately [amount] AUD. The applicant confirmed this.
I was concerned that, despite discussing the matter with the applicant in a variety of ways, he was able to provide little detail of the claimed loan. For example, he was unable to give many details about the loan terms. I asked him what the repayment terms were for the loan, the level of interest, what the collateral was, and he was unable to give me any answers to these questions. He said the arrangement was only made orally and it was based on the fact that his family have a company. He said that the company only paid the loan shark back small amounts. He said he was not clear on the details as his brother took him to the place and showed the applicant to the loan sharks so that after that they would look for the applicant. He said that at that time his mental stress was really bad, his brother took him there and showed him what to do and he just did it. I asked if any of the principal had been paid off the loan and he said to this point he did not know. I asked why he did not know and he said because he was in Australia, and as they searched for him they would see the company and get some back little by little. The applicant was unable to specify with any precision when he took out the loan.
When I put these concerns to the applicant, he said that he got the loan because of the family situation and to save his brother’s life and then he (the applicant) ran away to Australia.
I have carefully considered the explanations given by the applicant but I do not find them convincing. I do not accept that someone taking on a loan, particularly for such a large amount, would not make themselves more aware of, and be able to tell me, more of the details of that loan. I found the applicant’s lack of ability to provide even basic details about the terms of the loan to be of great concern and to lead me to doubt that he had taken out such a loan.
I have carefully considered his claim that his brother took him to meet the loan sharks and handled the transaction. The applicant proffered this as an explanation why he did not know more about the loan. I do not find this convincing. Even if his brother instigated and led the process, I consider that someone taking out such a loan, particularly where he claimed his brother had taken out a similar loan and been threatened, would not have made himself more aware of the terms and conditions of any loan. I note that the applicant is reasonably educated, having a Diploma in [Subject] and coming to Australia to study at the higher education level.
I further doubt this explanation because if this was the case, and his brother had indeed led the process, I would expect the loan sharks to have harmed his brother or other members if the loan was not paid. The applicant was adamant that his family had not been harmed and that the family company had only paid small amounts towards the loan since he had fled back to Australia, but that the loan sharks would seriously harm him if he returned.
A related concern is the amount of the loan. I do not accept that such a large amount of money would be lent without very significant surety. When this was put to the applicant he claimed that the family company was involved and also that the fact he was resident in Australia was significant, he had shown them his right to reside in Australia and that he had Australian bank accounts. The applicant was unable to provide any more detail about either of these claimed sources of security for the loan. Having carefully considered his evidence I do not accept that loan sharks, or in fact any lender, lawful or unlawful, would loan such a large amount of money without very clear and substantial surety. I find the applicant’s claim to have taken out a loan of [amount] VND in 2016 on very little and unclear security for that loan to be implausible. Further, I found the applicant’s implausible and vague evidence on this, combined with his vague evidence on the other terms of the loan to be of significant concern and to lead me to doubt whether this and other aspects of his claims were true.
Further, as I put to the applicant at the hearing, country information indicates that loan sharking is widespread in Vietnam, that there is potential for retaliation for unpaid debts including harassment to violence, and members of families may also face harassment, threats or violence for loans taken out by their family members.[1] I noted that he had claimed to have borrowed [amount] VND over five years ago, that this had not been repaid, that the family company pay the loan sharks small amounts when they come around, and that his mother and brother had not been harmed by the loan sharks. I noted that I might find this implausible given the amount of the loan, the loan sharks would want some of the principal to be paid back, and the capacity in the country information for family members to be harmed meant I might think it implausible that his family have not suffered threats or violence from the loan sharks. The applicant responded that the underworld operate outside the law, that he was the person who took out the loan so the anger was directed only to him and that if they harassed his family his family could not continue the business and continue to pay the loan sharks small amounts of money. I do not find these explanations convincing. I do not accept that the loan sharks would not, after five years, seek more of the principal back from the applicant’s family and/or the family business, particularly given the size of the claimed loan. I do not accept that the loan sharks would not at the least harass his family to pay more of the principal. I found the applicant’s claims about this, and his explanations, to lack credibility.
Concerns with disparity between written and oral claims
[1] DFAT Country Information Report, Vietnam, 11 January 2022 [3.102 – 3.107].
As I noted to the applicant at the hearings, there were significant differences between the claims made in his written application and what he had claimed at the hearing – specifically, he had claimed at the hearing to fear harm because of the loan taken out from loan sharks sometime on his return visit to Vietnam in 2016, he did not claim to have been verbally threatened, nor did he claim to have difficulties because of the economic situation, poverty and unemployment nor harsh living conditions, nor did he claim to have experienced discrimination, as a [Country 1] woman or otherwise.
The applicant acknowledged that many of the claims made in his written application did not relate to his situation, he said that the application was written by a former friend, a ghost writer who helped him with his paperwork. I noted that I might have difficulties accepting this claim given that he had told me he had completed an English course when he had come to Australia on a student visa in 2013. I noted that the application required someone to certify that everything in it was true and correct and that I might think the applicant would have been able to read and understand what was in the application. The applicant did not respond.
I am willing to accept that the applicant may have been assisted to complete his application. However, given that he told me he had completed and English course, and that he is a reasonably educated person, I do not accept that he would have been unaware of what had been written in his application. An application for protection is a significant, important document and I do not accept that a person who cannot return to their home county because they fear persecution or a real risk of significant harm would not have paid attention to and carefully considered the information provided, even if he was helped by someone else. This leads me to doubt that the claims made in the written application are genuine, and to have concerns that the applicant, at the time he lodged the application and at this time, fears persecution or believes he has a real risk of significant harm if returned to Vietnam.
Delay and timing of cancellation of student visa
A further concern is that the applicant had remained in Australia for many years before applying for protection. The applicant claims he took the loan when he returned to Vietnam in 2016. As I noted to the applicant, in 2016 his student visa was cancelled, and it would have been clear to the applicant (through the Department making contact with him prior to this) that his student visa was to be cancelled. I noted to him that, given the other concerns, I may also hold concerns that he had lodged his protection visa not because his claims to fear harm from a loan shark were true, but because it was clear to him his student visa was to be cancelled and he wished to remain in Australia for other reasons, not connected to his claims.

The applicant responded reiterating that he had come to Australia in 2013, had returned to Vietnam in 2014 and 2016, and on the second occasion, as his family company was in difficulties and his older brother had had to borrow money, he had borrowed money from the loan shark and ran away to Australia. I find that this does not engage with my concern, nor provide further insight into how or why the applicant took the decision to apply for protection at the time he did. I do not accept his explanation for why he applied for protection just before his student visa was to be cancelled.
The timing of this, combined with my other concerns above, leads me to have further concerns that the applicant’s claims are true.
Having concerned my concerns above, I find that these concerns are significant, particularly the first set of concerns around the lack of detail and plausibility of the loan claim, and I find that this, with the other sets of concerns, leads me to find that the applicant’s claims in total are not credible.
Findings on claims
On the basis of my credibility findings above, I find that:
·     I do not accept that the applicant’s family company was in financial trouble. I do not accept that as a result his brother took out a loan from loan sharks and was threatened or harmed as a result.
·     I do not accept that the applicant took out a loan from loan sharks of [amount] VND or any amount when he returned to Vietnam in March 2016, or at any other time. I do not accept he took out this loan to protect his brother or for the family company or any other reason.
·     I do not accept the applicant was threatened or harmed by loan sharks or anyone else at any time.
·     I do not accept that the loan sharks come to the family business where the applicant’s mother or brother give the loan sharks small amounts of money.
·     I do not accept that he left Vietnam because of distrust of the judiciary and government, poor government system, poverty and unemployment. I do not accept that he was living in harsh conditions and had to borrow money from relatives which he could not repay. I do not accept that he lives in mental distress and fear as many people who have debt problems like him are injured and killed
·     I do not accept that he thinks if he returns to Vietnam he will be caught by his creditors resulting in his injury or death.
·     I do not accept he has experienced any harm in Vietnam. I do not accept he has been verbally threatened, nor lived in harsh conditions. I do not accept he sought help within Vietnam but nothing happened as ‘they’ consider it a personal problem.
·     I do not accept he thinks he will be harmed or mistreated if he returns due to the harsh conditions and the discrimination suffered by [Country 1] women.
·     I do not accept that he cannot seek assistance from the Vietnamese authorities or relocate within Vietnam due to the problem being rooted in socio economic issues.
I find that the applicant has fabricated his claims, in total, to prolong his stay in Australia for reasons other than those claimed.
I do accept that the applicant would return to Vietnam and may be identifiable as a failed asylum seeker given the length of time he has remained in Australia. However, having regard to his evidence and the information before me I find the applicant departed Vietnam lawfully and would return there lawfully. When I put to him that I thought he could return and would not face any difficulties as a failed asylum seeker on the information before me,[2] he conceded that he was still legal, but the problem was that he would be harmed by the moneylenders. Having regard to the information before me I find that the applicant departed lawfully and is able to return lawfully.
Is there a real chance the applicant will suffer serious harm amounting to persecution if he is returned to Vietnam?
[2] DFAT Country Information Report, Vietnam, 11 January 2022 [5.25 – 5.35]
I have considered what I have accepted of the applicant’s claims. I find that the applicant departed lawfully and is able to return lawfully. I find that the applicant may be identifiable as a failed asylum seeker given the length of his stay in Australia, but as above I find the applicant will face no real chance of harm connected to this characteristic on the information before me.
I have rejected the applicant’s claims relating to taking out a loan from loan sharks / relative and his claims to have lived in harsh conditions due to the economic situation/unemployment, nor to have been discriminated against for any reason.
On the findings above I find that the applicant can return to his home area in Vietnam. I find he will not face harm there from loan sharks / relatives, or anyone else for any reason on what I have accepted.
I find that there is no real chance the applicant will suffer serious harm amounting to persecution from loan sharks, relatives, or anyone else for reasons of him being a debtor to loan sharks / relatives, unemployed, discriminated against or for any other reason arising from what is before me, if he returns to Vietnam now or in the reasonably foreseeable future.
Is there a real risk the applicant will suffer significant harm if he is removed from Australia to Vietnam?
I have carefully considered the claims made by the applicant. As above I have accepted only that the applicant is a national of Vietnam, has departed lawfully and is able to return lawfully. I find that the applicant may be identifiable as a failed asylum seeker given the length of his stay in Australia, but as above I find on the information before me that the applicant will face no real risk of significant harm connected to this.
As above, I have rejected the applicant’s claims relating to taking out a loan from loan sharks / relative and his claims to have lived in harsh conditions due to the economic situation/unemployment, nor to have been discriminated against for any reason. As above, I have found that the applicant can return to his home area in Vietnam. I find he will not face harm there from loan sharks / relatives, or anyone else for any reason on what I have accepted.
I find that there is no real risk the applicant will suffer significant harm from loan sharks, relatives, or anyone else on any basis, if he is removed from Australia to Vietnam now or in the reasonably foreseeable future.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Sean Baker
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.
…

[2022] AATA 1121

5 April 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction