1822776 (Refugee)

1822776 (Refugee) [2022] AATA 1253 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822776
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Phoebe Dunn
DATE:3 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 March 2022 at 1:05pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholicism – church land appropriation – dumping of toxic chemicals – detained after participation in protests – applicant declined hearing invitation – insufficient evidence – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
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 2 August 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 21 February 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was owed protection in Australia for a refugee reason or on complementary protection grounds.
On 15 November 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 30 November 2021 at 3.00pm. The applicant responded to the hearing invitation stating that he was unable to attend on the specified date and time. The Tribunal invited the applicant to attend a new hearing scheduled for 15 March 2022 at 10.30am. By email dated 23 February 2022, the applicant responded to the hearing invitation stating that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it, as follows:
I would like to thank you and AAT for your interest in my case but sorry I don’t want to participate in the hearing and accept the results that the court has previously made. Thank you.
This matter has therefore been determined on the evidence available to the Tribunal.
Identity
The applicant provided personal identifiers to the Department consistent with Department records, including the applicant’s passport and travel records. The Department does not have a copy of his passport on file.
Based on this information and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, and that he is a national of Vietnam, which is also his receiving country.
Based on the information before it, the Tribunal finds that the applicant does not have a right to enter and reside in any third country.
Background
The applicant arrived in Australia on [date] October 2013.
The applicant became an unlawful non-citizen on 5 January 2014.
The applicant lodged a protection visa application on 21 February 2017. The applicant was granted an associated Bridging visa on 23 February 2017.
Claims
The applicant made the following claims in his protection visa application:
a.He wanted to leave Vietnam because he and his family don’t like the current Vietnamese government. The only way he could leave was to apply for a visa to another country.
b.He came to Australia initially to study to develop his profession and new skills.
c.After living in Australia, he appreciated the democratic system and human rights in Australia.
d.In Vietnam the government confiscated church land (‘places of prayers’) and developed them into tourist places. His voice as a Catholic believer was suppressed.
e.He often participated in protests about the atrocity of the Communist government. On many occasions he and other students and professionals were detained. He was detained for five weeks after participating in a protest. He was told he would be summonsed to appear in court one day for his participation in the protests.
f.If he returns to Vietnam now he would be arrested at the airport because his family members are protesting and demanding an explanation from the government about the toxic environment in Ba Ria, Vung Tua caused by the dumping of toxic chemicals which are killing millions of fish. Fish are the main source of income for his family and other locals. They could no longer work or have food to eat because all the fish are dead. His family and other locals have expressed anger and protested and the police have issued warnings that if his family members continue they will be detained and placed in prisons. As his family has been put on notice he fears that he will be detained as well if he returns to Vietnam.
g.He can’t relocate to another area in Vietnam as the government controls the whole of Vietnam. He will be interrogated and sent back to his hometown and face ‘the same sentence as per my family’s action’.
h.The authorities won’t protect him because his family has been categorised as a protest group and are considered traitors of the government. The government will never provide protection to anyone who expresses their opinions or beliefs. His family has been expressing anger and organising protests.
The applicant provided the following details in his protection visa application. He was born on [date] in Thua Thien Hue, Vietnam and is of Kinh ethnicity. He did not list his religion in response to question 33 (‘Your religion (including denomination eg. Shia Muslim) (if any)’). His father and mother still live in Thua Thien Hue, as do his wife, [and children]. He stated that he makes calls to his parents and sisters about once a month, but did not mention contacting his wife and adult children. He arrived in Australia on a valid visa. He assumes it has been cancelled but he did not receive notification of the cancellation of the visa. He has never travelled anywhere other than to Australia. In response to a question about past and current employment he stated that from February 2013 to currently he has never worked. He did not provide any details of work undertaken in Vietnam. He completed secondary school in August [year].
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Vietnam and, if not, whether there are 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As identified above, the Tribunal formed the preliminary view that there was not sufficient evidence before it to be satisfied that the applicant faced harm for the reasons he claimed, or for any other reason if he returned to Vietnam now or in the foreseeable future. The Tribunal informed the applicant in the hearing invitation letter that it was not able to make a favourable decision on the evidence before it and was inviting the applicant to attend a hearing to give evidence and present arguments in support of his case. The applicant was not available for the first hearing and declined the second hearing invitation indicating that he did not wish to attend the hearing and would accept the decision made.
As such, the Tribunal only has the applicant’s written claims contained in the protection visa application before it to consider. As the applicant declined the hearing invitation, the Tribunal has not had an opportunity to test those claims. Having regard to the history of this matter identified above, the Tribunal considers it has given the applicant ample opportunity to appear before it and provide information in support of his claims and the applicant has declined to do so.
The Tribunal remains of the view that there is insufficient evidence before it on which to reach a positive decision on his claims. The applicant has provided very little detail about the claimed events such as when the events occurred or over what period the claimed events occurred or the location(s) of the claimed events.
The applicant has provided very little detail about his claims relating to the confiscation of Church land, the taking away of places of prayers or the suppression of his voice as a Catholic believer. The applicant has given no specific information about these claims, such as the churches and/or places of prayers that were confiscated or whether he was directly impacted or prevented from practising his religion. He has not provided any detail about how his voice as a Catholic believer was suppressed.
The applicant has provided very little detail about his protest activities, other than to say he often participated in protests against the atrocities of the Communist government. The applicant has not provided any detail about when or where he engaged in any protests, the nature of the protest activities or who organised the protests. The applicant has not provided any details about what the protests were directed to, aside from saying they were protests against the atrocities of the Communist government. The applicant has not provided any detail about how old he was when he participated in these claimed protests, or whether he was a student or working or unemployed at the time.
Further, the applicant has stated that ‘on many occasions’ he and other students and professionals were detained. The applicant had not provided any details about these periods of detention, except in relation to one period of detention which he claimed was for five weeks. The applicant has not provided any dates of any of the periods of detention or any details of what happened to him or why he was detained. The applicant claims that he was told after the five week detention that he would be summonsed to appear in Court one day for his participation in the protest but has provided no other detail in relation to this claim.
In relation to his claims that he will be targeted on return to Vietnam because his family has engaged in protest activities in relation to the Formosa environmental disaster, the applicant has provided very little detail about his family’s involvement in any protests other than to say they are protesting and demanding an explanation from the government about the toxic chemicals that are killing the fish. The applicant hasn’t provided any specific details about their protest activities, such as the dates of their engagement in protests or their role in the protests or whether they were organisers of the protests. The applicant claims that his family has been warned by the police that if they continue to protest and/or organised protests they will be detained and placed in prison. The applicant has not provided any information to the Department or the Tribunal to establish that any member of the applicant’s family was ever detained, imprisoned or sentenced by the government because of their protesting or because they have organised protests or because they are considered traitors of the government. The applicant has not provided any details of any witnesses or any corroborating evidence in support of any of his claims.
As the applicant declined the hearing invitation, the Tribunal has not been able to discuss any of those claims with the applicant and does not have more current information in relation to any of the applicant’s claims, such as whether any of the applicant’s family has ever been detained, imprisoned or sentenced due to their claimed protest activities or whether any member of the applicant’s family has been given compensation arising out of the Formosa environmental disaster.
There is nothing before the Tribunal to verify the applicant’s claims that fish are the main source of income for his family and that his family can no longer work or have food to eat because all the fish are dead. The Tribunal notes that the applicant has not provided any detail in his protection visa application about his employment history in Vietnam that would support his statement that fish are the main source of income for his family. The applicant has not provided any updated information to the Tribunal in either written or oral form on which to assess his claims that his family can no longer work or have food to eat because all the fish are dead.
Further, the applicant stated in his protection visa application that he came to Australia to develop his profession and new skills as opposed to out of any well-founded fear of persecution for a refugee ground or on a complementary protection ground. The applicant stated that after living in Australia he liked the democratic lifestyle and human rights afforded to Australian citizens. The Tribunal considers this suggests that the applicant applied for protection to secure a visa outcome as opposed to for a genuine protection reason.
The Tribunal also notes that the applicant first arrived in Australia in October 2013 but did not apply for protection until February 2017. The Tribunal considers that the delay in applying for protection raises concerns as to the whether the claims are genuine. The Tribunal has not had the opportunity to raise its concerns with the applicant and consider any explanation from the applicant for the delay in applying for protection. The Tribunal also notes that the applicant did not respond to the Department’s request for further information and has not provided any further details in support of his application to the Tribunal, despite being offered repeated opportunities to do so. The Tribunal considers that the failure to provide further details to either the Department or the Tribunal in written or oral form gives rise to a concern about the genuine nature of the claims or the seriousness with which he took his protection visa application.
Noting that the Formosa environmental disaster occurred in April 2016, the Tribunal has considered whether a reasonable explanation for the delay in applying for protection is that his fears have increased as a consequence of the claimed protest activities of the applicant’s family in relation to the Formosa environmental disaster. However, as noted above, the Tribunal has not had the opportunity to test the applicant’s claims at hearing or to discuss its concerns with the applicant about the substance of the applicants claims or the timing of the application.
The Tribunal has had regard to independent country information about Vietnam relevant to the applicant’s claims. In relation to the applicant’s claims about religious freedoms and the treatment of Catholics, the Tribunal has considered the country information applicable at the time of application and the most recent country information at the time of this decision.[1] Having regard to the independent country information applicable at the time of application, DFAT assesses that Catholics are able to practise freely at registered churches and that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the Communist Party of Vietnam (CPV) and its policies.[2] In the most recent report, DFAT assessed that Catholics are generally able to practise freely at registered churches and generally do not experience societal discrimination.[3] However, DFAT notes that land disputes have been reported, but that much of the appropriated land has been returned over decades. DFAT also assesses that those who engage in political activism face a moderate risk of official discrimination:
3.28 Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades. That process continues, including during the COVID-19 pandemic, reportedly in return for cooperation of the Church with authorities during the pandemic.
3.29 Church officials do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources told DFAT that individual Catholics or communities have relationship with the diaspora overseas, including in Australia, and these relationships are generally unhindered.
3.30In-country sources 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.
3.31DFAT 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. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. 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] DFAT Country Report – Vietnam, 21 June 2017 and DFAT Country Report – Vietnam, 11 January 2022
[2] DFAT Country Report – Vietnam, 21 June 2017, [3.10]
[3] DFAT Country Report – Vietnam, 11 January 2022, [3.28] to [3.31]

The Tribunal does not consider that the independent country information supports a finding that the applicant would be discriminated against or suffer persecution on the basis of his religion. The Tribunal notes that the applicant has not claimed that the protest activity he claims to have been engaged in related to his religion or to any compulsory acquisition of church land. Accordingly, the Tribunal does not accept that the applicant’s practise of his religion of itself gives rise to any protection claims.
The Tribunal has considered the applicant’s claims that the government confiscated church land and developed it into tourist places and that his voice as a Catholic believer was suppressed, having regard to the independent country information set out in paragraph 33 of this decision. The Tribunal accepts on the basis of that information that the Vietnamese government did appropriate Church land and that some of that land was sold for private development. However, as noted above, the Tribunal does not consider it has sufficient information to verify whether the applicant’s voice as a Catholic believer was suppressed as a consequence of any such church land appropriation. The applicant did not claim that any church the applicant attended had been appropriated and sold. The applicant did not claim that he had been directly impacted by church land appropriation other than to say his voice as a Catholic believer had been supressed. The applicant has not provided any details about how his voice as a Catholic believer has been suppressed or whether it was linked to land appropriation. As such, it is not clear whether the applicant was directly impacted by the appropriation of church land or whether it was a generalised statement about government practices at the time. It is not clear how the applicant’s voice as a Catholic believer has been suppressed as a consequence of any land appropriation. The Tribunal has not had the opportunity to discuss this claim or any integers of this claim with the applicant or determine whether, having regard to the country information, this claim is still current. Accordingly, the Tribunal does not accept this claim or any integer of this claim.
In relation to the applicant’s claims regarding his own protest activities, the Tribunal does not consider the country information to be consistent with the applicant’s capacity to leave Vietnam and come to Australia without incident. Independent country information applicable at the time the applicant left Vietnam suggests that the government limited the movement of individuals engaged in political activity, in particular foreign travel by political activists[4], and notes that there are credible reports of the government maintaining lists of political activists who have come to the attention of the authorities. Further, the country information states that political activists who have been released from detention may continue to be monitored and are frequently prevented from travelling internationally.[5] The applicant claims that he was told that he would be summonsed to appear in court as a consequence of his protest activity suggesting that his actions had come to the attention of the authorities. The Tribunal considers that if the applicant had frequently engaged in protest activity and had been detained many times and once for five weeks as claimed, and had been told he would be summonsed to appear in court, the applicant would have come to the attention of the authorities to the extent that it is likely that he would have had difficulty leaving Vietnam irrespective of whether he had a valid visa to do so.
[4] DFAT Country Report - Vietnam – 31 August 2015, [5.26]
[5] DFAT Country Report - Vietnam – 31 August 2015, [3.32] – [3.40]
The Tribunal has also considered the most recent country information in relation to the applicant’s claims that he will be arrested on return as a consequence of his family’s claimed protest activity against the Formosa environmental disaster. The Tribunal notes that human rights, environmental or land-use protests and calls for democracy are considered sensitive matters to the government and that activism on sensitive issues is likely to come to the attention of the authorities.[6] However, the Tribunal notes that DFAT understands Formosa protests are no longer occurring in part because of a deal made with the company to provide compensation to victims.[7] Accordingly, even if the Tribunal accepted the applicant’s claims relating to his family’s participation in protest activities giving rise to protection claims, the Tribunal does not accept that the most recent country information supports a finding that these claims are still current.
[6] DFAT Country Report – Vietnam – 22 January 2022, [3.54]
[7] Ibid, [3.65] – [3.67]
Accordingly, on the basis of the evidence before it, the Tribunal does not accept that:
a.The applicant wanted to leave Vietnam because he and his family didn’t like the current Vietnamese government.
b.The applicant’s voice as a Catholic believer was suppressed or that he was prevented from practising his religion in Vietnam or that he was impacted by any government confiscation of church land or places or prayer by the government.
c.The applicant participated in protests about the atrocities of the Communist government or that on many occasions he was detained as a consequence of his participation in those protests. It follows that the Tribunal does not accept that he was detained for five weeks after participating in a protest or that he was told that he would be summonsed to appear in court one day due to his participation in the protests.
d.The applicant’s family has participated in protest activities and is demanding an explanation from the government about the toxic environment in Ba Ria, Vung Tua caused by the dumping of toxic chemicals which are killing millions of fish. It follows that the Tribunal does not accept that the applicant’s family members have been told that they will be arrested and detained and placed in prisons if they continue to protest or that they are categorised as a protest group and considered traitors of the government. It follows that the Tribunal does not accept that the applicant would be arrested at the airport if he returns to Vietnam because his family members have been protesting and/or have been organising protests, have been categorised as a protest group or are considered traitors of the government. It follows that the Tribunal does not accept that the applicant will receive ‘the same sentence as per his family’s actions’.
The Tribunal considers that the evidence before it suggests that the applicant came to Australia to find work and to secure a better life for himself and his family rather than out of a well-founded fear of persecution for a refugee reason or for any complementary protection reason.
Does the applicant meet the refugee criterion?
For the reasons identified above, the Tribunal does not accept the applicant’s claims for protection.
Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm if he were to return to Vietnam, arising from the circumstances claimed by the applicant.
Having regard to the Tribunal’s findings and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Vietnam now or in the foreseeable future, he would face a real chance of serious harm on the basis of his claims or for any other reason set out in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[8] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of his claims or for any other reason.
[8] MIAC v SZQRB [2013] FCAFC 33
Therefore, 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 Thailand, there is a real risk that he will suffer significant harm. Therefore, 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.
Phoebe Dunn
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1253

3 March 2022

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