1822597 (Refugee)

[2024] AATA 1386

1822597 (Refugee) [2024] AATA 1386 (19 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822597

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Sydelle Muling

DATE:19 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2024 at 3:38pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion and religion – church attendance and membership of political and religious youth groups – meetings and rallies – leader and group members arrested – lawful departure on valid passport – returned, failed asylum seeker – vague claims and evidence – consent to decision without hearing – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 7 March 2018.

3. On 27 February 2024, the Tribunal wrote to the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited the applicant to appear before it on 3 April 2024 at 9:00am to give oral evidence and present arguments.

4. On 1 March 2024, the Tribunal received an email from the applicant’s appointed representative at the time with the completed and signed response to hearing invitation form, indicating that the applicant would take part in the hearing scheduled for 3 April 2024.

5. On 20 March 2024, the Tribunal received a further completed response to hearing invitation form indicating that the applicant would not be participating in the hearing scheduled for 3 April 2024 and consenting to the Tribunal making a decision without taking further steps to allow him to appear. 

6. The Tribunal called the applicant twice on 21 March 2024 to clarify whether he wanted the Tribunal to make a decision on the information before it and not attend the hearing given the earlier response to the hearing invitation received. Messages were left asking the applicant to contact the Tribunal. The applicant did not return the Tribunal’s calls.

7. On 25 March 2023, the Tribunal wrote to the applicant noting that he had completed and submitted two hearing response forms, one in which he indicated he wished to attend the hearing scheduled for 3 April 2024 and the other in which he ticked ‘No, I do not want to have a hearing and I consent to the Tribunal making a decision on the papers without inviting me to a hearing for my case”.  The applicant was requested to provide a written response confirming whether he wanted to attend a hearing to give evidence and present arguments on his case or if he did not want a hearing and consents to the Tribunal making a decision on the papers. The Tribunal did not receive a response from the applicant.

8. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, the Tribunal considers it appropriate to determine the review without a hearing in accordance with s 425(2)(b) of the Act.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    CLAIMS AND EVIDENCE

15. The applicant claims to be a citizen of Vietnam who was born on [Date] in Nghe An, Vietnam. According to his protection visa application, the applicant’s ethnicity is Kinh and his religion Catholic. He resided in Yen Thanh, Nghe An from [birth] to November 2013. The applicant completed a degree in [Subject] in April 2013 and is fluent in Vietnamese and English. The applicant departed Vietnam legally on [Date] November 2013, arriving in Australia on [Date] November 2013 on a student visa. His father, mother [and siblings] are residing in Vietnam.

16. The applicant presented his claims in a statement attached to his protection visa application, summarised as follows:

    ·He is making the application for a protection visa on the grounds of his political opinion in that he is against the Communist government of Vietnam, and his religion, that is he is a practising Christian and is not free to practise his religion in Vietnam.

    ·He is in fear that if he is forced to return to Vietnam, he will be persecuted by the government authorities of Vietnam because of his political opinion and religion.

    ·In May 2010 he joined a political group named [Group 1] which consisted largely of university students and was headed by a lecturer at the university in Ho Chi Minh City which he attended.

    ·The group wanted more freedom for the citizens of Vietnam such as freedom of speech, freedom of the press and freedom of assembly. They often met in the university cafes, where they discussed politics and how they could achieve change and convince people to protest against the government’s laws.

    ·He attended a number of meetings and rallies at which his lecturer, who was the leader of the student group, often spoke. Whilst he did not hold any position within this group, he was classed as a very strong member.

    ·The leader of this student group was arrested in 2013 at one of the student rallies and this really scared him as the government authorities went on the news and made it known all supporters and members of this group would be arrested if they continued to support [Group 1].

    ·He believes all Vietnamese have the right to lawfully protest against the government and that by arresting his lecturer the government was trying to stop freedom of speech. However, he was aware if he continued to associate with the student group, he too would be arrested so he moved back to live with his parents.

    ·With the help of his parents, he applied for a visa in June 2013 and when he received his visa in November 2013, he left the country and came to Australia.

    ·He is also a practising Catholic, as are his parents, and when he lived in Vietnam, he would attend church every Sunday. Christianity is a minority religion in Vietnam and the practising of Christianity is not really encouraged by the government authorities.

    ·He joined a teenage Catholic group named [Group 2]. This group communicated though the internet to share their experiences and meet with each other on certain special occasions such as the Lunar New Year, Christmas, and Easter.

    ·They would meet at certain churches and have meetings which they held in secret as they did not want the government authorities to know what they were doing as they are anti-religion of any sort, especially Christianity.

    ·In 2011, 14 people from [Group 2] were arrested when they assembled for a meeting, including one of his close friends. He was at the meeting but was able to escape. The people arrested were forced to renounce the group as a condition of their release.

    ·The government authorities commenced a crackdown against all such religious groups saying that groups like [Group 2] were trying to convert normal Vietnamese to Christianity and cause trouble within society. The authorities were trying to track down the group on the internet, so it became dangerous for them to communicate.

    ·The group is still active, but he was too afraid to get involved so he stopped.

    ·He believes he has been denied his right as a Vietnamese citizen to practise his religion freely without interference from the authorities. Since migrating to Australia, he has been able to practise his religion freely and without any interference from the Australian government. He attends church every Sunday.

    ·If he is forced to return to Vietnam, he will be prevented from practising his religion freely.

17. The applicant also provided excerpts of country information from various sources including the 2004 US Department of State Human Rights report, Human Rights Watch report dated 23 March 2010 and Freedom House’s Freedom in the World: Vietnam 2016 report; an untranslated  copy of his household registration book; a report from the Victorian Police titled “Notice to the Victim – Important Information” dated [December] 2017; an untranslated copy of the applicant’s identity card; and degree certificate from [University].

18. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 1 August 2018.

19. On 20 March 2024, the Tribunal received correspondence from the applicant dated 15 March 2024 which included his response to the hearing invitation form indicating that he would not be participating in the hearing scheduled for 3 April 2024 and consenting to the Tribunal making a decision without taking further steps to allow him to appear and a statement responding to the decision made by the delegate and providing excerpts of information from various sources including the DFAT Country Information Report Vietnam dated 11 January 2022, Freedom in the World 2023 -Vietnam, Human Rights Watch World Report 2023: Vietnam, Amnesty International and the US Department of State Country Report on Human Rights Practices: Vietnam 2022.

20. In addition to reiterating the claims he made in his statement attached to his protection visa application, the applicant provided the following additional information, in summary:

    ·He will continue his association with such groups who fight for individual freedom, if forced to return to Vietnam and will suffer persecution as stated in the country information reports he attached to the submission.

    ·The most recent country information reports will confirm his belief that he will be continually persecuted by the government authorities when he practises his religion in Vietnam.

    ·He will be a returned asylum seeker and when it is discovered that he had applied for refugee status on religious and political grounds, he will be questioned and detained by the government authorities. He will be questioned at the airport while security checks are undertaken, and he is fearful of what will happen to him during his processing at the airport.

    ·He has a strong commitment to the practise of his religion and still attends Catholic church every Sunday. One of his main fears is that if forced to return to Vietnam, he will be unable to practise his religion because there will be interference from the Communist government of Vietnam, who are determined to stop the growth of religions such as Christianity and will take whatever steps needed to stop persons like him from attending church.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issues in this review are whether there is a real chance that, if he returns to Vietnam, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

23. The applicant’s nationality is not in issue. The applicant travelled to Australia on a valid Vietnamese passport and states that he is a national of Vietnam. The Tribunal accepts on the evidence before it, which in addition to the applicant’s passport includes his identification card and household registration booklet, that Vietnam is the applicant’s country of nationality and receiving country for the purposes of complementary protection.

24. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is ‘well founded’. 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. 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 decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437 at 451).

    Political opinion

25. The applicant claims to fear harm from the Vietnamese government and its authorities for reasons of his political opinion. He claimed to have joined a political group called [Group 1] whilst at university and to have been a very strong and ardent supporter of this group although he held no official position. The Tribunal notes that the applicant claimed that he joined the university in 2008 but did not get involved in any political agitation at first. He claimed he joined [Group 1] which consisted largely of university students, in May 2010. The applicant has not provided any information as to why he was not involved in any political activism for the first two years that he was at university despite there being a lot of students who were politically active, what made him decide in 2010 to become politically active and why he joined the [Group 1], in particular, in May 2010 and not some other political group. The Tribunal finds the applicant has provided limited detail and context about this group and his involvement with them. The applicant has not provided any information to indicate when this group was formed or how large this group was (whether it consisted of 10 people or 100 people). In terms of what this group advocated, the applicant has provided very general information about freedom of speech, freedom of the press and freedom of assembly. While he claimed they would often meet in university cafes to discuss politics and how they could achieve change, he has provided insufficient information regarding how often such meetings would be held, how often he would attend these meetings and what would be discussed at these meetings, other than politics and the lack of freedom generally in Vietnam, as he asserted in his recent statement.  Similarly, he claimed to have attended a number of rallies and meetings, however he has not provided any information regarding the number of meetings and particularly rallies he attended, when these rallies were held, where they were held, the number of people who attended or what these rallies were about. The applicant has claimed that he was classed as a very strong member of this group however he has provided little information to establish on what basis he had this alleged profile.

26. With respect to the applicant’s claim that the leader of the [Group 1] group was arrested in 2013 at a student rally, the applicant has provided little detail about the circumstances of this incident, including when in 2013 this rally was held, where it was held, how many people were in attendance, whether he was present at the time, if anyone other than the leader of the group was arrested and what happened to the leader of the group after he was arrested. Similarly, the applicant has provided limited details regarding the government authorities action in tracking members and supporters of this group including what the government authorities did apart from allegedly going on the news to threaten that they would be arrested if they continued to support the group, whether he was known to the authorities or if any action was taken against other members and supporters of the group following the leaders’ arrest. The Tribunal notes the applicant claimed that he stopped associating with this group following this alleged incident and moved back to his home, which also appears to coincide with when he completed his degree. The applicant has not provided any information regarding whether he was associated with any other groups after this, either when he returned to his home area or after he departed Vietnam.

1. The Tribunal finds that there is insufficient evidence to satisfy it that the applicant holds the political opinions that he claims to have, or that he was politically active in Vietnam as a member or supporter of the [Group 1] group or in any other way. As such, the Tribunal is not satisfied that the applicant was involved in any political agitation in Vietnam in the past or that he will continue his association with such groups who fight for individual freedom if returned to Vietnam, as he claimed in his recent statement. The Tribunal is not satisfied that there is a real chance that the applicant will face harm from the Vietnamese government and its authorities for reason of his alleged political opinion if he returns to Vietnam in the reasonably foreseeable future. It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution from the Vietnamese government or its authorities pursuant to s 5J(1) of the Act.

2. The Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for this reason.

   Religion

3. The applicant claimed that he is a practising Catholic and that because of his interest in Catholicism, he joined a teenage Catholic group named [Group 2].  The applicant has provided very little detail regarding his interest in Catholicism and how this led to him joining this group. He has provided no detail as to how he came to learn of this group, which in his recent statement he claimed met in secret, or when he joined this group. Nor has he provided any information about the purpose of this group other than sharing experiences and meeting on special occasions such as Christmas and Easter. He has provided no details as to which churches this group would meet at, how often they would meet, how many people would attend these meetings and what the objective of these meetings were.

4. With respect to the applicant’s claim regarding the arrest of 14 people from this group in 2011, the applicant has provided very little detail about the circumstances of this incident including when in 2011 this occurred, where the meeting was being held when this incident occurred, how many people were in attendance at this meeting, how he was able to escape from the authorities or how long those arrested were held for before being released. Nor has the applicant provided any information as to how this group remained active following this incident despite his claim that the authorities were tracking them on the internet making it dangerous for them to communicate this way, or when he ceased being involved in this group.

5. Considering the limited information provided by the applicant with respect to this claim, the Tribunal is not satisfied that the applicant was a member of a group called [Group 2] or that he faces any harm as a result of his claimed association with this group. On the limited information before it, the Tribunal is not satisfied that there is a real chance that the applicant will face harm from the Vietnamese government or its authorities because of his alleged association with [Group 2], if he returns to Malaysia in the reasonably foreseeable future.

6. The applicant claimed that he is denied his right to practise his religion freely without interference from the Vietnamese government. The Tribunal notes the applicant’s evidence that he attended church on a regular basis, every Sunday, in Vietnam, as he currently does in Australia. It is unclear on the limited information provided by the applicant if in fact his practise of his Catholic religion is restricted in any way given that he claims to have only attended church regularly in Vietnam (as he also does in Australia), and if so, how it is restricted or interfered with by the government. In light of the limited information provided by the applicant in relation to the practise of his Catholic faith, the Tribunal is not satisfied that the applicant is unable to practise his Catholic faith in Vietnam.

7. The applicant referred to DFAT’s Country information report on Vietnam dated 11 January 2022 in which it is noted that the highest concentration of Catholics is in central Vietnam including Nghe An, where the applicant resided (according to his protection visa application). The DFAT report provides that in-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. The Catholic Church is, by definition, united and can deal with the Government at a national level across Vietnam. Provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered. In-country sources also told DFAT, Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination. Most Catholics worship in churches as part of parishes. Some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches. DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence[1].

   [1] DFAT, Country Information Report Vietnam, 11 January 2022, paras 3.22-3.24 and 3.30-3.31.

8. The Tribunal has taken into consideration the country information provided by the applicant and accepts that the Vietnamese government restricts religious practice through legislation, registration requirements and surveillance. However, based on the Tribunal’s findings above regarding the applicant’s political opinion and political activism, as well as it findings with respect to his claimed association with [Group 2], and taking into consideration the information cited above from the DFAT report which the applicant referred to in his statement, the Tribunal does not accept that there is a real chance that the applicant will face serious harm for reasons of his Catholic religion, including being unable to practise his religion or attend church (as he claimed in his recent statement), if he returns to Vietnam, now or in the reasonably foreseeable future.

9. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm because of his Catholic faith.

   Returned asylum seeker

10. In the applicant’s recent statement, he raised for the first-time claims related to his profile as a returned asylum seeker. The applicant referred to the DFAT Country report on Vietnam which provides that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT stated it is not aware of any cases in which returnees from Australia have been held overnight for this purpose. The report also notes that being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. It notes that those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum[2].

    [2] DFAT, Country Information Report Vietnam, 11 January 2022, paras 5.29-5.35.

11. The Tribunal accepts on the information before it that there is a more than a remote chance that the applicant will be questioned by the authorities at the airport, on his arrival in Vietnam.  Based on the information cited above, such questioning will be for a period of no more than a few hours. The Tribunal does not accept that being questioned at the airport by the authorities constitutes serious or significant harm. The Tribunal notes that there is nothing in the applicant’s evidence to suggest that he has publicly opposed the Vietnamese government whilst in Australia or that he is wanted for such activities in Vietnam. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm as a returnee or failed asylum seeker.

12. The Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

13. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[3]. It therefore follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because of his alleged political opinion, his Catholic religion, as a failed asylum seeker or for any other reason.

    [3] MIAC v SZQRB [2013] FCAFC 33 [246], [297], [342].

14. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted for any of the reasons outlined in s 5J(1)(a) of the Act, including his alleged political opinion, his Catholic religion or as a failed asylum seeker or 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.

15. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).

    CONCLUSIONS

16. 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).

17. 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).

18. 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 any of the criteria in s 36(2).

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sydelle Muling
    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.

    …