1819532 (Refugee)

1819532 (Refugee) [2024] AATA 2365 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819532
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Khanh Hoang
DATE:22 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 February 2024 at 12:27pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of the authorities – Chinese heritage – debt – paid off in full – perception from friends – perceived as being unsuccessful – medical condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 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 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 29 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 20 April 2018.
On 19 January 2024, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 13 February 2024.
On the morning of the scheduled hearing, at 9.17am, the applicant submitted a hearing response form on which she ticked the box: ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. However, the applicant presented at the Tribunal’s registry at prior to the scheduled hearing. She stated that she had erroneously ticked ‘no’ and that she wished to have a hearing. The Tribunal, having dismissed the interpreter earlier due to the applicant’s response, rescheduled the hearing for 16 February 2024 with the applicant’s agreement. Subsequently, the applicant appeared before the Tribunal on 16 February 2024 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.
The applicant was not represented in relation to the review.
The issue in this review is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criterion. For the reasons that will follow, the Tribunal has concluded that the decision under review should be affirmed.
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.
Identity and country of reference
Based on a copy of the applicant’s passport which she supplied to the Tribunal, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is the applicant’s country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
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
Evidence before the Department
In her application for a protection visa the applicant made the following claims:
·she left Vietnam to study abroad;
·if she returns to Vietnam, the authorities will threaten and mistreat her and her family;
·the government will treat her like a criminal and will not treat her like other citizens;
·she experienced threats to her family back in Vietnam; and
·she is unable to relocate within Vietnam because the authorities will be able to find her.
The applicant was not interviewed by the Department, and she did not provide any other information to support her claims.
The delegate refused the grant of the protection visa as they were not satisfied that the applicant would be harmed because of her race, religion, nationality, membership of a particular social group or political opinion if she were to return to Vietnam. Nor was the delegate satisfied that the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
The delegate’s decision was underpinned by the fact that the applicant provided no further information as to the nature of her fears of suffering serious or significant harm.
Tribunal hearing
Applicant’s background
The applicant is now [age] years old. She was born in Bac Lieu province. Her family comprises of her father (now deceased), mother, [and number of siblings]. Her family members currently reside in Bac Lieu province.
The applicant is educated to university level. She graduated with an [Discipline 1] degree from [University 1] in Ho Chi Minh City around 2007. She commenced employment at [Employer 1] in Ho Chi Minh city around 2008 and remained employed there until her first departure to Australia in 2010.
The applicant first arrived in Australia in 2010 on a student visa to study a Master degree at [University 2]. She gave evidence that the student visa was to enable her to complete one year of English studies, followed by three years to complete the Master degree. However, she did not achieve the requisite English language score to be admitted into the Master degree. The applicant extended her student visa around 2014, and changed her course to one that was cheaper than [University 2]. However, she did not pass that course either.
The applicant stated that she then applied for a partner visa, which was subsequently refused by the Department and affirmed on review to the Tribunal. The applicant gave evidence that her migration history involved many trips back to Vietnam, although she has not returned to Vietnam since 2017. Her evidence in this regard was consistent with her migration history as set out in the delegate’s decision record.
The applicant told the Tribunal that a friend, who was a lawyer, assisted her with preparing her protection visa application. She stated that the content in her protection visa application was hers, and the lawyer assisted with correcting any errors in English. When asked if the application was read back to her and whether she understood what was in the application, she replied in the affirmative. She stated that her application included a claim in respect of a debt in Vietnam. The Tribunal put to the applicant that her protection visa application made no mention of any debt claims to which the applicant replied that she could not remember clearly up until now.
When asked what she understood the purpose of a protection visa to be at the time she applied, the applicant stated that when her partner visa application was refused, she wanted to remain in Australia to finalise a few things and have a go at starting a business. She is currently running a [store] in Brisbane with a younger male cousin. She stated that she her business had won a small business award from the State Government. She also stated that she has a bought a property and it is paid off in full.
Perception from friends
When asked why she feared returning to Vietnam, the applicant stated that she wanted to remain in Australia to set up her business. She stated that her fear was not of being harmed, but that all her peers in Vietnam had achieved something, and she would be perceived as being unsuccessful if she returned. Prior to arriving in Australia, she believed that she was perceived by her friends as being successful, as she was among the top [employees] in terms of bonuses and potential for advancement.
The applicant stated that while she was working in Ho Chi Minh she had a medical condition whereby, if she gets stressed one of the veins in her foot would burst and would take a long time to heal. When asked how this related to her fear of returning to Vietnam, she stated that if she thinks about being perceived as less successful than her friends, she gets stressed, and this may cause her vein to burst. The applicant also stated that the weather and the environment in Vietnam adversely affects her in this regard.
When asked why she could not seek health care in Vietnam, the applicant stated that there are specialists and dermatologists in Vietnam, but none were able to diagnose her condition. She stated that the condition is being managed now. Since she has been in Australia, her condition has improved a lot, and her doctor has told her that it relates to her environment and stress levels. The applicant stated that she is afraid that, if returned to Vietnam, she will feel sick and will not have an income to finance her medical treatment.
Fear of the authorities
When asked about the claims in her protection visa application that she will suffer harm from the Vietnamese government, the applicant stated her fears were not as great as it was previously. She stated that in the past the fear arose from the fact that her family is of Chinese descent. When asked whether she thinks the Vietnamese government would harm her in any way if she returned to Vietnam now, the applicant stated, ‘probably not’.
Debt
When asked to expand on her debt claim, the applicant stated that around 2007, her father had a stroke and the family needed money to pay for his medical fees. She claimed that the family had borrowed VND $50,000,000, from a person named ‘[Mr A]’ who lived about 6km from the family home. She stated that a month later, the family went back to repay the loan and offered to pay the principal and VND $2,000,000 in interest. Her family considered this amount to be reasonable. However, [Mr A] asked for VND $10,000,000 in interest, making the total that was owed VND $ 60,000,000. The applicant stated that her family tried to negotiate a discount but was unsuccessful. She stated that the loan was paid back in full about a month later because the family could not drag it out any longer. The Tribunal asked the applicant if she would face any harm from [Mr A] in the future to which the applicant replied ‘no’.
COUNTRY INFORMATION
The Tribunal has considered DFAT’s Vietnam Country Report of 11 January 2022, where it is reported under ‘Healthcare’:[1]
2.13 According to United Nations Development Programme data, life expectancy is 75.4 years (men 71.3 years, women 79.5 years) and health expenditure is 5.5 per cent of GDP (for context: combined men and women’s life expectancy in Australia is 83.4 years and health spending is 9.2 per cent of GDP in Australia). Economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese.
2.14 Hospitals are organised at the ‘central’ (national), provincial and district levels, along with private hospitals that are found in urban areas. Healthcare in rural communities is provided at commune-level health centres. These centres provide basic preventative care, diagnoses and treatments, and refer people on to hospitals. Quality varies from place to place, and some centres are poorly funded and ill-equipped. Distance for people living in remote areas can be a barrier to access. Health centres are usually staffed by nurses and midwives, while some may have doctors. Hospitals are the primary place of care (rather than, for example, a general practitioner’s practice) for many Vietnamese. See also Internal Relocation for information on how place of residence and household registration can affect access to healthcare.
2.15 The vast majority of the population is enrolled in the social health insurance scheme. The poor, ethnic minorities and elderly are fully subsidised, while others pay premiums. Healthcare is not free; a co-payment is required from patients, potentially along with bribes due to corruption. The co-payment is higher in central and provincial-level hospitals, but the level of care there is also higher. This may encourage those who can afford it to bypass lower-level hospitals to receive treatment.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 11 January 2022, p 9.
FINDINGS AND REASONS
The mere fact that a person claims a fear of serious harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. 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).
Refugee findings
Perception from friends and medical condition
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The Tribunal is willing to accept that the applicant fears her friends may perceive her as not being successful if she returns to Vietnam. The Tribunal notes that her claim in this regard appear at odds with her evidence that she has bought a house and has operated a successful business in Australia. However, the Tribunal accepts the fact that she had not completed her studies and has failed thus far to obtain permanent residency in Australia to be factors that, in her mind, would contribute to such a perception from her friends.
However, the applicant did not advance claims that her friends would harm her in any way. The Tribunal finds that her fears stem from within the applicant herself, rather than a fear of harm being inflicted upon her by others. The Tribunal finds that her claim does not relate to any of the reasons in s 5J(1)(a). Further, while the Tribunal accepts that her fear of how others might think of her upon return to Vietnam could result in some level of stress, this, in and of itself, does not amount to serious harm to the person: s 5J(4)(b).
The applicant claimed that her existing medical condition would be exacerbated by stress associated with her fear of how others might think of her. The Tribunal accepts that might be the case, however, this does not disturb the Tribunal’s findings. The applicant gave evidence that her medical condition has been diagnosed and is currently under control. There is no information before the Tribunal to suggest that her medical condition is life threatening or otherwise significantly impacts on her ability to work or to live her life. Given that the applicant has lived with this condition for well over a decade, including taking multiple trips back to Vietnam, the Tribunal does not accept that any stress because of her returning to Vietnam — whether because of her perception of what others might think of her, or the weather, or the environment — gives rise to serious harm. The Tribunal also puts weight on country information that, if needed, the applicant can seek appropriate health care in Ho Chi Minh city where she was living prior to coming to Australia. Nothing on the country information suggests that the Vietnamese authorities would intentionally withhold the provision of health care to the applicant for one or more of the reasons in s 5J(1)(a). These findings also lead the Tribunal to not accept the applicant’s claim that her medical condition would incapacitate her to the extent that she could not work and be able to afford health care. Accordingly, on this claim, the Tribunal also finds that it does not relate a fear of persecution for one or more of the reasons in s 5J(1)(a), involve serious harm to the person, or systematic or discriminatory conduct (s 5J(4)(b) and (c)).
Fear of the authorities

Based on the applicant’s evidence at hearing, the Tribunal finds that she holds no subjective fear of being persecuted by the Vietnamese authorities now, or in the reasonably foreseeable future. On the limited evidence before it, the Tribunal does not accept that the Vietnamese government have threatened her or her family in the past for any reason, including her family’s Chinese heritage, and they will not do so now. The Tribunal does not accept the claim made in her protection visa application that she will be treated like criminals by the authorities. The Tribunal’s finding is buttressed by the fact that the applicant has returned to Vietnam on multiple occasions since 2010 without any issue.
Accordingly, the Tribunal finds that the applicant does not face a real chance of being persecuted by the Vietnamese authorities if she were to return to Vietnam now, or in the reasonably foreseeable future.
Debt
Similarly, at hearing, the applicant conceded that she has no reason to fear any harm from [Mr A] if she were to return to Vietnam. The Tribunal accepts that the applicant’s family paid off the loan from [Mr A] some years ago. The Tribunal finds that, if she returns to Vietnam now or in the reasonably foreseeable future, [Mr A] has no reason to seek to harm her. It follows that the applicant does not face a real chance of being persecuted by [Mr A] now, or in the reasonably foreseeable future.
Conclusion: Refugee findings
The Tribunal, having considered the applicant’s claims individually and cumulatively, for the reasons given above, finds that she does not have a well-founded fear of persecution in Vietnam and is not a refugee for purposes of s 5H. She is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection findings
Having found that the applicant is not a refugee, the Tribunal will now consider whether she meets the criterion for complementary protection under s 36(2)(aa). That is, whether there are 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 she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Perception from friends and medical condition
The Tribunal has considered whether the applicant’s fear that friends will view her as being unsuccessful, and the stress that would stem from this, constitutes ‘significant harm’. The Tribunal notes that the applicant has not claimed, and there is nothing to suggest that she will be arbitrarily deprived of her life or liberty, that she will face the death penalty or be tortured if returned to Vietnam. In relation to the other forms of significant harm, the Tribunal notes:
·The definition of ‘cruel or inhuman treatment or punishment’ states that it means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
·Similarly, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
The Tribunal found above that the applicant’s claims relate to her own perception of how her friends might think of her. Her claim does not relate to any act or omission or a subjective intention on the part of a person to bring about the relevant harm to the applicant. Accordingly, while the Tribunal accepts that her fear in this respect is genuine, it does not constitute ‘significant harm’ as exhaustively defined in s 36(2A).
For the same reasons, while the Tribunal accepts that stress arising from that fear might exacerbate symptoms associated with her medical condition, there is no act or omission or a subjective intention on the part of a person to bring about the relevant harm to the applicant. As noted above, the Tribunal also found that the Vietnamese government will not intentionally withhold access to healthcare to the applicant should she require it. Accordingly, her claims do not constitute ‘significant harm’ as exhaustively defined in s 36(2A).
Debt and fear of the authorities
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[2] The Tribunal has found above that the applicant will not face a real chance of being persecuted by the Vietnamese government or by [Mr A] if returned to Vietnam. For the same reasons, the Tribunal also finds that the applicant faces no real risk of significant harm if returned to Vietnam.
Conclusion: complementary protection
[2] MIAC v SZQRB [2013] FCAFC 33
Having considered the applicant’s claims individually and cumulatively, and having considered all her circumstances, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, that she will suffer significant harm. She is therefore not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
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.
Khanh Hoang
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.
…

[2024] AATA 2365

22 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice