1822885 (Refugee)

[2024] AATA 2086

1822885 (Refugee) [2024] AATA 2086 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822885

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Sydelle Muling

DATE:12 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 12 April 2024 at 11:41am

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – economic financial difficulties – claim regarding discipline decision not credible – incapable of providing information regarding claimed opposition to government – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 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 24 April 2018.

3. The applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   CLAIMS AND EVIDENCE

10. The applicant is a [age]-year-old Buddhist male who was born in [Village 1], [District 1], Binh Thuan province, in Vietnam. According to his protection visa application, the applicant resided in [Village 1], [District 1], Binh Thuan province from [year] to September 2016. He attended primary school from [year] to [year] and secondary school from [year] to [year]. The applicant completed a trade certificate between 2006 and 2008. He is fluent in Vietnamese. The applicant described his occupation as “Labourer, General Hands”. He was employed as an “[occupation]” between 2009 and September 2016, working for various private companies. The applicant’s father is deceased. His mother, two brothers and sister are residing in Vietnam. The applicant departed Vietnam legally on [date] September 2016, arriving in Australia on [date] September 2016. 

11. The applicant presented his claims in his protection visa application, summarised as follows:

    ·Since leaving school he worked as an  [occupation] and often opposed Vietnamese government rules and policies.

    ·He was confronted by local authorities many times.

    ·From time-to-time life became harder so he looked for somewhere abroad for a better chance of living.

    ·He was ignored and mistreated before he left the country.

    ·He fears he will be on a watch list as on many occasions he did not follow their rules.

    ·He possibly will be arrested as he confronted and opposed “them”. He will be ignored and mistreated.

    ·It will be impossible for him to seek employment, or he will be denied wherever he goes. As it is a communist country, anywhere will be the same.

    ·The communist government will not offer protection to any citizen abroad who returns to the country. He will be treated as a spy.

12. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 3 August 2018.

13. The applicant appeared before the Tribunal on 27 March 2024 and gave oral evidence about his circumstances in Vietnam, reasons he left the country and why he does not want to return there now. The evidence will be discussed below in the analysis and findings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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

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

16. The applicant claims to be a citizen of Vietnam. He 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, namely a copy of the applicant’s passport, that the applicant is a citizen of Vietnam and therefore, Vietnam is the applicant’s country of nationality and receiving country for the purposes of complementary protection.

17. In the hearing, the applicant claimed one of the reasons that he travelled to Australia in September 2016 was “family situation”. When asked what the other reasons he came to Australia were, the applicant responded that he worked for the government and “something he did not know how to tell the Tribunal”.

18. With respect to the applicant’s family situation, the Tribunal finds the applicant’s evidence to be extremely vague and limited. When asked to explain his family situation, the applicant stated only his mother was at home and difficulties. When the Tribunal queried what difficulties, the applicant responded life difficulties and difficulties in all aspects. The Tribunal asked the applicant to explain what he meant by this, and he stated economic financial difficulties and life difficulties. When the Tribunal put to the applicant that it was unclear what he meant when he stated life difficulties, the applicant stated difficulties about financial economics and in employment because he worked for the government. The Tribunal asked the applicant about his employment difficulties, and he responded that he did not know how to say. He confirmed he could not explain. Similarly, he was unable to expand any further in relation to his reference to economic and financial difficulties, apart from stating economy, finance and money. Later in the hearing, when the Tribunal asked the applicant again about the economic and financial difficulties he raised earlier, the applicant stated in terms of money, when his father passed away when he was young, his mother was responsible for raising him and his siblings.

19. In terms of employment, the applicant raised at the conclusion of the hearing that he had experienced some pressure from the authorities in relation to his employment. When asked what pressure he received, he stated that the authorities often contacted him about his employment to ask him to do something and when he did not do what they asked, they caused him trouble. The Tribunal finds the applicant’s evidence about what he was asked to do by the authorities to be vague and lacking in detail. He stated money declaration, asset reports, “something like that” and did not elaborate any further. Similarly, his evidence regarding what trouble the authorities caused him was extremely limited and ambiguous. He claimed that the authorities got a bad feeling towards him. When asked to elaborate further as to what he meant, he stated that he did not know how to explain. The Tribunal finds the applicants evidence in relation to the pressure he allegedly had from the authorities with respect to his employment to be unsatisfactory and for this reason, does not accept this claim is credible. 

20. Given the applicant’s inability to articulate in any detail what life, financial and/or economic difficulties he personally experienced in Vietnam in the past, other than the fact that his mother was responsible for financially providing for him and his siblings after his father died, or what difficulties of this nature he fears he will experience if he returns there now, the Tribunal does not accept that the applicant faces a real chance of serious harm, including economic harm that would constitute serious harm, if he returns to Vietnam, now or in the reasonably foreseeable future.

21. The Tribunal notes the country information it put to the applicant from the DFAT Country report on Vietnam dated 11 January 2022, that according to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty in Vietnam and in that period the poverty rate fell from over 70 per cent to below 6 per cent. The report notes that the economy continues to grow and has strong growth potential with 2.9 per cent growth in 2020 despite the Covid-19 pandemic. In terms of employment, the report provides that the official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high, with the World Bank quoting 76 per cent of all workers being in the informal sector. The report stated that Vietnam is rapidly urbanising, and the services sector has become the largest part of the economy at about 50 per cent GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce[1].

    [1] Department of Foreign Affairs and Trade, Country Information Report Vietnam, 11 January 2022, paras 2.5-2.7.

22. According to the applicant’s evidence in the hearing, after completing school he worked in construction for two years, from 2008 to 2010, and from 2010 he did  [specified] work until he departed the country to come to Australia in September 2016. The Tribunal notes the applicant’s evidence that both his siblings are employed, with his sister recently securing a position in [a government] department. As the Tribunal put to the applicant in the hearing, his employment history in Vietnam does not suggest that he experienced any difficulty securing employment in the past, nor is there anything before the Tribunal to indicate that he would be denied employment for any reason on his return to Vietnam.  Considering this and the country information cited above, the Tribunal does not accept that there is a real chance the applicant will suffer serious harm including significant economic hardship that threatens his capacity to subsist, or denial of the capacity to earn a livelihood of any kind, where that denial threatens his capacity to subsist as per the examples set out in s 5J(5) of the Act.

23. The Tribunal asked the applicant why he does not want to return to Vietnam and the applicant reiterated family difficulties in terms of financial situation, and some pressure. The Tribunal asked the applicant to explain what he meant when he stated pressure and the applicant responded, the discipline decision. When the Tribunal asked the applicant about the discipline decision, he stated that he left the decision in Vietnam and does not remember the details. The applicant claimed the discipline decision was about him travelling to Australia and it was made by the leaders of [District 1]. However, the applicant was unable to provide an explanation for why this decision was made. He subsequently claimed that he was disciplined because he had travelled. When the Tribunal put to the applicant that it made no sense why he would be disciplined because he had travelled but he was able to depart the country legally, he stated that he applied to travel and bought his ticket and then he was disciplined through the making of this decision but could not remember the details of that decision.

24. Given the extremely limited information the applicant could provide about this alleged decision, the Tribunal does not accept that any discipline decision was made by the leaders of [District 1] or anyone else. The applicant could not remember the day or month the decision was made but subsequently stated that he thought it was in September 2016, which was when he travelled to Australia. While the applicant initially intimated that the decision was made prior to his departure from Vietnam, later in the hearing he suggested that this decision was made after he came to Australia. However, the Tribunal notes that the applicant subsequently referred to this happening before he left the country when he explained why he is afraid to return to Vietnam. More significantly, the applicant could not provide any information regarding what this decision was. The Tribunal finds it implausible that if the applicant feared harm because of this particular decision, that he would not recall at the very least the nature of the decision. The applicant’s inability to provide clarification as to what this alleged decision was about and why it was made leads the Tribunal to conclude that this claim is not credible.

25. Further, the fact that this claim was only raised in the hearing confirms the Tribunal’s doubt about its veracity. While the Tribunal notes the applicant’s evidence in the hearing that someone else completed the protection visa application form for him, he indicated that he did not tell the person that filled in the application about the discipline decision. When asked why he did not tell them about the discipline decision if this was the reason he feared returning to Vietnam, the applicant stated that he did not remember at the time and only recalled the discipline decision recently. The Tribunal finds it implausible that the applicant would forget about this decision at the time he made his application for protection in April 2018 and only recall it several years later, if this is a reason he fears he will be seriously harmed if he returns to Vietnam. 

26. Based on the above, the Tribunal does not accept the applicant’s claim regarding this discipline decision is credible. As such, it does not accept that the applicant faces a real chance of serious harm for this reason if he returns to Vietnam, now or in the reasonably foreseeable future.

27. In the applicant’s protection visa application, he claimed that he often opposed Vietnamese government rules and policies. The Tribunal notes that the applicant did not raise this claim during the hearing. When the Tribunal put this to the applicant, he responded “a little bit opposition”. The Tribunal asked the applicant to expand further to explain what he meant by this, however he was unable to do so. The applicant was incapable of providing any information regarding his claimed opposition to the Vietnamese government. Considering the applicant’s failure to raise this claim in the hearing and his inability to articulate in any way what rules and policies he allegedly opposed or why and how he opposed them, the Tribunal does not accept the applicant’s claims regarding his opposition to Vietnamese government rules and policies are credible.

28. Accordingly, the Tribunal does not accept that the applicant was confronted by local authorities many times because of his opposition to Vietnamese government rules or policies. Nor does the Tribunal accept that the applicant will be on a watch list because he did not follow their rules on many occasions, that he will be arrested on his return to Vietnam because he confronted and opposed “them”, that he will be ignored and mistreated, or that it will be impossible for him to seek employment for this reason. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm because he opposed the Vietnamese government, and it rules and policies, or because he confronted the government, if he returns to Vietnam.

29. The applicant claimed in the hearing that before he left Vietnam he was summonsed twice because he asked permission to leave the country. He could not remember when he was summonsed other than it was before he travelled to Australia. When asked what happened when he was summonsed, the applicant stated that they asked him to come and see them and they had a conversation in relation to his application for permission to leave the country. The Tribunal asked the applicant what the conversation was about, and he stated that they asked him why he was travelling. The applicant confirmed that these two occasions were the only interactions he had with the authorities. The Tribunal has some concerns about the veracity of this claim given the applicant raised this for the first time in the hearing, and in light of the vague and limited information he provided about these meetings. However, the Tribunal accepts as plausible that the applicant may have been asked to have a discussion with authorities on two occasions with respect to his application for permission to travel to Australia. The Tribunal finds on the evidence provided by the applicant, that this was simply enquiries made in consideration of the applicant’s application for permission to travel. The Tribunal has taken into consideration information in the DFAT Country Report on Vietnam, which it put to the applicant in the hearing, that citizens are freely able to travel abroad and return from abroad in accordance with the provisions of the law, however in practice the government imposes limits on entry and exits for political activists and government critics[2]. The Tribunal finds the fact that the applicant was able to depart the country legally, as he confirmed at the beginning of the hearing, indicates that he was given the necessary permission to leave the country and that he was not of any interest to the authorities. The Tribunal notes the applicant did not articulate that he feared any harm on his return to Vietnam based on these two meetings that he claimed to have had in relation to his application for permission to travel. Given the Tribunal’s findings above that the applicant’s claims regarding his opposition to the government and discipline decision are not credible, and the fact that he legally departed Vietnam, the Tribunal does not accept that the applicant would be of any adverse interest to the authorise on his return, including because he has been abroad, or that he would be treated as a spy. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm on his return to Vietnam because of the discussions that took place with respect to his application for permission to travel.

    [2] Department of Foreign Affairs and Trade, Country Information Report Vietnam, 11 January 2022, para 5.25. This is consistent with information on exit and entry procedures in DFAT’s Country Information Report Vietnam, 21 June 2017.

1. Considering all the applicant’s evidence, 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. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   COMPLEMENTARY PROTECTION

2. As the Tribunal does not accept that the applicant is a refugee as defined in the Act, the Tribunal has considered the alternative criteria in s 36(2)(aa), that is, 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 as exclusively defined in s 36(2A) of the Act.

3. Having regard to the definition of significant harm in s 36(2A) of the Act, as set out in the attachment of this decision, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Vietnam will involve a real risk of: being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. As discussed above, the Tribunal does not accept the applicant’s claim regarding his opposition to the Vietnamese government and its rules and policies, the discipline decision or pressure he allegedly had from the authorities in relation to his employment are credible.

4. Nor does the Tribunal accept, for the reasons provided, that the applicant faces a real chance of significant harm related to the two meetings he had with authorities who questioned him in relation to his application for permission to travel to Australia or because of any life, financial and/or economic difficulties and being unable to subsist if he returns to Vietnam.

5. The Full Federal Court held in MIAC v SZQRB 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 decision[3].

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

6. Based on the above, the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Vietnam, there is a real risk that the applicant will suffer significant harm.

7. The Tribunal accepts that the applicant wishes to remain in Australia so he can continue working, as he stated at the conclusion of the hearing. However, it does not accept that such a reason comes within the complementary protection provisions of the Act as it does not constitute significant harm, as defined in s 36(2A) of the Act. 

8. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).

   CONCLUSION

9. 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).

10. 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).

11. 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

12. 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.

    …