1821480 (Refugee)
[2022] AATA 2498
•14 June 2022
1821480 (Refugee) [2022] AATA 2498 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821480
COUNTRY OF REFERENCE: Vietnam
MEMBER:Sheridan Lee
DATE:14 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 June 2022 at 8:07am
CATCHWORDS
REFUGEE – protection visa – Vietnam – threats of harm by relative acting as a loan shark – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZAKQ v MIBP [2016] FCCA 1186
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLPN v MIAC [2010] FCA 202
SZLVZ v MIAC [2008] FCA 1816
SZNRZ v MIAC [2010] FCA 107
SZQMB v MIAC [2012] FMCA 24
SZRGE v MIAC [2013] FMCA 18
Zhang v RRT & Anor [1997] FCA 423Any 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 13 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man from Vietnam. He applied for the visa on 19 March 2018 on the basis that he would be caught and killed by people he borrowed money from and due to the general socio-economic conditions in Vietnam. The delegate found that the applicant could gain adequate protection from the Vietnamese police and refused to grant the visa.
I accept that the applicant is a citizen of the Socialist Republic of Vietnam and have assessed the applicant’s claims against Vietnam as his country of reference for the purposes of s 5H(1)(a) and his receiving country for complementary protection purposes.
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, I have 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 applicant first arrived in Australia [in] March 2010 on a Higher Education Sector, Subclass 573 visa. Since his first arrival, he departed and returned to Australia on three occasions, in 2011, 2012 and 2014 respectively.
On 2 February 2015, the applicant had his second Subclass 573 visa cancelled and remained in Australia illegally until he applied for protection on 3 April 2018.
The application for protection form contained the following information regarding the applicant:
·He is Buddhist.
·He left Vietnam because of a distrust in the judiciary, the poor system of government and bureaucracy.
·He expressed concern about the impact of the global economy on the local economy of Vietnam, the high unemployment rate and harsh living conditions.
·He borrowed money from relatives.
·If he returned to Vietnam he could be hit, injured or killed by creditors.
·He was verbally threatened by creditors.
·He sought assistance from the police, but they consider debt to be a personal problem.
·He did not try to move to another area of Vietnam because the socio-economic problems affect all areas of the country.
The delegate refused the application and the applicant applied for merits review of that decision. A copy of the delegate’s decision was provided to the Tribunal on review.
The applicant participated in a brief video hearing via MS Teams on 30 November 2021. At the initial hearing the applicant confirmed that the claims put forward in his application for protection were correct and he had no additional claims or evidence to submit. The applicant also advised that he did not complete his application for protection form personally; he received assistance from a friend.
The applicant appeared before the Tribunal using MS Teams on 21 December 2021 to give substantive evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant gave evidence that he was born in Dalat in South Vietnam. He follows the Buddhist religion and self-identified as a member of the Kinh ethnic group. At the date of the hearing, the applicant’s parents lived in Dalat and his brother lived in [another country]. The applicant lived with his girlfriend, who is an Australian citizen. The applicant has no children.
Prior to travelling to Australia, the applicant lived in Ho Chi Minh City for approximately four years. He completed year 11 and studied English, followed by a course in [Discipline 1]. The applicant gave evidence that he could speak both Vietnamese and English.
The applicant claimed that he would not feel safe in Vietnam. Since he was in school, he had been bullied. The applicant said that he lost a year of education because of bullying. If he got involved in a brawl or fighting, his results were marked down. Although he was the victim, he received bad results. The applicant felt that the situation was unfair and was forced to repeat a year of high school. In the end, he did not complete year 12.
If he returned to Vietnam, the applicant claimed he would need to start again. He would have nothing, and his parents would not support him.
The applicant gave evidence that he first came to Australia in 2010 to study a Diploma of [Discipline 1], however, he did not complete the course. He did not apply for protection because he didn’t know about the visa.
The applicant’s parents supported his student visa application. However, the applicant said that in 2012 he borrowed AU$[Amount 1] from his cousin-in-law, [Mr A], for his studies. The applicant said [Mr A] had been asking for the money to be returned.
The applicant said he had been repaying the money using bank transfers or a money transfer service and at the date of the hearing there was around [amount] dollars outstanding. I asked how the applicant kept track of the loan and he explained that he had a note in his phone, but it was an old phone and that was a long time ago.
The applicant claimed that [Mr A] is a gangster in Dalat and operates as a loan shark. He loans money out at a high interest rate and threatens people to make repayments. The applicant acknowledged that [Mr A] was a relative but expressed fear that he would still be threatening. The applicant’s loan was subject to an interest rate of 20% per month. He lost the loan documents some time ago.
The applicant changed his Facebook details and phone number and said he had not been threatened for a very long time. He said that he had never spoken with his parents about the issue.
I advised the applicant that I was having some difficulty accepting the credibility of his evidence. I highlighted that his oral evidence differed from the written claims in his application form. In particular, his application form outlined that he borrowed money while he was still in Vietnam and at the hearing he gave evidence that he borrowed money while he was living in Australia. Further, he had no record of the loan and no record of making repayments.
In response, the applicant explained that [Mr A] had promised to loan the money but didn’t transfer the funds for two years. He first threatened the applicant in 2015. The applicant could not remember the exact words but said that he threatened to kill him if he returned to Vietnam because he did not repay the loan on time.
The applicant said that he was making some money by selling handmade items. However, he did not generate enough money to pay the loan on time. He last made a repayment in 2015. He had not made a payment since that time because they lost contact. The applicant commented that he had paid more than he borrowed. He then changed his phone number so he could avoid [Mr A].
The applicant claimed that he could not get any assistance from his parents if he returned to Vietnam. He felt he had made enough trouble for them and did not want them to pay his debt.
I advised the applicant that if he was able to locate any record of the repayments, he could send them to the Tribunal before a decision was made. I further advised that a decision would not be made until the new year. At the date of this decision, no further evidence had been received by the Tribunal.
FINDINGS
I accept that the applicant is a Buddhist man from Vietnam. I accept that he was bullied in high school and holds a genuine concern about the general socio-economic situation in Vietnam. For the reasons below, I do not accept that he owes money to a relative named [Mr A] or any other person. I do not accept that he was threatened by relatives or independent creditors or that he approached the police in Vietnam for assistance. Further, I do not accept that there are any individuals or groups that would seek to locate or harm the applicant on his return to Vietnam.
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims they made. This may involve an assessment of the applicant's credibility and, in doing so, I am aware of the need and importance of being sensitive to the difficulties asylum seekers often face. In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[1] However, as outlined in The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.[2]
[1] SZLVZ v MIAC [2008] FCA 1816 at [25].
[2] Geneva, 2019, para 204.
I further note that the Australia courts have not endorsed a free standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law.[3] In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision-maker to be ‘satisfied’ of the matters set forth in s 65 of the Act.[4]
[3] See SZNRZ v MIAC [2010] FCA 107 at [19]–[21]; SZLPN v MIAC [2010] FCA 202 at [16]–[17]; MZAKQ v MIBP [2016] FCCA 1186 at [50]–[61]; SZRGE v MIAC [2013] FMCA 18 at [52]–[60]; SZQMB v MIAC [2012] FMCA 24 at [48]–[51].
[4] See SZNRZ v MIAC [2010] FCA 107 at [20].
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
As outlined above, there were several inconsistencies between the applicant’s written application and his oral evidence at the hearing. Significantly, on the application form, the applicant claimed that he approached the police in Vietnam for assistance in relation to his debt, which was withheld. He further noted that he did not move to another area of Vietnam because the situation was the same across the country. However, at the Tribunal hearing, the applicant gave evidence that he borrowed AU$[Amount 1] from [Mr A] in 2012, by which time he was living in Australia. When I raised my concern with the applicant, he then claimed that [Mr A] had promised to provide him with the loan two years prior to transferring the funds. Nevertheless, the applicant also gave evidence at the hearing that the first threats were made in 2015. He has not returned to Vietnam since that time, and it is implausible that he went to the police for assistance before he was threatened.
In addition to the inconsistencies between the written application and the oral evidence, the applicant had no record of having entered into a loan agreement, receiving funds, or making any repayments. He claimed to have lost his phone and his loan documents. Despite being advised that he could send records of bank transfers or transfers made by a money transfer service, no further evidence was submitted.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[6] The applicant applied for a protection visa on 3 April 2018, more than eight years after he first arrived in Australia. At the time he applied, the applicant had limited options to remain in Australia. This is not indicative behaviour of someone who fears for their physical safety. At the Tribunal hearing, the applicant gave evidence that he did not apply for protection earlier because he was unaware of the visa. I do not find this to be a convincing justification for the delay in applying. The applicant was twice previously able to successfully navigate his way through the Australian migration system in order to be granted student visas. If he was unsure how to proceed in this instance, he could have sought advice on his options to remain in Australia at any time since the cancellation of his final student visa in 2015.
[6] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
Considering all the evidence cumulatively and having regard to the applicant’s narrative as a whole, I do not find the applicant’s evidence in relation to the risk of harm from creditors to be credible. I do not accept his claims to owe money to a relative named [Mr A] or to have been threatened with harm for failing to repay a loan on time. In addition, I do not accept that there are any individuals or groups that would seek to physically assault or threaten the applicant for any reason.
The applicant’s evidence at the Tribunal hearing in respect of being bullied at school was vague and brief. He did not previously raise any claims about bullying in his application for protection. On the available evidence, I do not consider the bullying experienced by the applicant to be anything other than schoolyard behaviour. He gave no evidence to suggest that the behaviour continued beyond his school years or to suggest that he would be at risk of being bullied as an adult. I accept that the applicant was upset by the bullying and failed to complete year 12 as a result. However, I do not accept that he would face a real chance of serious harm from bullying in the reasonably foreseeable future.
Complementary protection
For the same reasons that I found there is no real chance of serious harm as a result of bullying or loan sharks, I find that the real risk element of the test in s 36(2)(aa) has not been met in relation to those factors.[7]
[7] As per the judgment in MIAC vSZQRB [2013] FCAFC 33.
In his application for protection form, the applicant expressed concern about the Vietnamese government, judiciary and police. He further expressed concern about the economy, unemployment rate, and harsh living conditions in Vietnam. At the Tribunal hearing, the applicant noted that if he returned to Vietnam he would be forced to start over.
I accept that corruption is widespread in Vietnam, including within government, the police and judiciary.[8] I further accept that although unemployment is relatively low in Vietnam, wages are generally higher in Australia than in Vietnam and social security more readily available.
[8] Department of Foreign Affairs and Trade Country Information Report Vietnam, 11 January 2022.
As previously outlined, in order to fall within Australia’s complementary protection obligations, there must be 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 the applicant will suffer significant harm: s 36(2)(aa). 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).
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.
On the facts, there is no suggestion that the applicant would be arbitrarily deprived of his life or that the death penalty would be carried out on him. These elements are therefore not relevant to the applicant’s claims.
The definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act require an element of intent. There must be an act or omission by which severe pain or suffering, or extreme humiliation, ‘is intentionally inflicted on a person’. In this case, the element of intent is not present. The general socio-economic situation in Vietnam is not one that was intentionally designed by an individual or the state to cause significant harm to the applicant. There is no intent on behalf of Vietnamese society or the authorities to prevent the applicant from gaining employment or accessing social services that are available to other citizens for himself. While the applicant may not earn a wage comparable to that he would earn in Australia, he would not face extreme humiliation and he is not in a position of vulnerability vis-à-vis the State.
Cruel or inhuman treatment or punishment and degrading treatment or punishment does not include an act or omission that is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights. The Complementary Protection Guidelines provide some guidance on certain circumstances which will generally not be considered inconsistent with Article 7. These include general socio-economic conditions, breach of social and economic rights, absence or inadequacy of medical treatment or imposition of treatment without consent, where that treatment is a medical or therapeutic necessity.[9] This policy supports a finding that the applicant’s claims do not amount to significant harm.
[9] Department of Home Affairs, Complementary Protection Guidelines, section 27, as re-issued 21 May 2015.
For the reasons above, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm: 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
MemberATTACHMENT - 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 [Mr A] 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.
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