1902020 (Refugee)

1902020 (Refugee) [2024] AATA 4077 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)
CASE NUMBER:  1902020
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Catherine Wall
DATE:13 September 2024
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 September 2024 at 9:28am
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from money lender – borrowed for business and unable to repay – threatened and assaulted – long period as unlawful non-citizen – vague, inconsistent and implausible claims and no supporting evidence – passage of time and no harm to parents who know lender – remarried to Australian citizen – member of family unit son – younger child now Australian citizen and application withdrawn – strong compassionate circumstances and best interests of child – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 351
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Subramanian V MIMA (1998) FCA
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The first-named applicant] is a [Age]-year-old citizen of Vietnam. She arrived in Australia on [in] February 2008 and applied for the visa on 6 September 2018.
The second-named applicant is [her son], who is [age] years of age. He has not made claims of his own and relies on being a member of the same family unit as the first-named applicant.
The delegate refused to grant the visa on the basis that the applicants were not owed protection by Australia.
The first-named applicant appeared before the Tribunal on 19 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicants were represented in relation to the review and the representative attended the Tribunal hearing.
The Tribunal notes that the first-named applicant’s second child, [Master A], was also an applicant for review. He acquired Australian citizenship [in] March 2022 and a withdrawal form was submitted to the Tribunal on 11 September 2024. The Tribunal accepted the withdrawal therefore it has no jurisdiction in regard to [Master A]’s application for review.
CLAIMS AND EVIDENCE
A summary of the first-named applicant’s claims as detailed in her protection visa application are as follows:
She married her first husband in Vietnam in 2004. They borrowed 300,000,000 VND[1] from a loan shark to establish a [business]. They were unable to repay the loan so the loan sharks threatened to harm their family. They told the loan sharks that they would borrow money in Australia to repay the loan but were unable to do so.
She travelled to Australia in 2008 with her first husband and oldest son. They had another child in [Year]. She divorced her first husband in 2014 and married her current husband in 2015.
She fears returning to Vietnam because she believes that the gangs will harm her because of her debt and the authorities are unable to protect her.
Evidence at hearing
[1] Equivalent to approximately $17,890 AUD at current conversion rates.
Note that I refer to the first-named applicant as ‘the applicant’ in this decision.
The applicant was asked about her background and circumstances in Vietnam. She said that she grew up in Bac Lieu and has one brother and one sister. Her parents and siblings remain in Vietnam and she has irregular contact with them. She married [Mr B] in 2004 and they had 3 children. Their first child, [Ms C], is aged [Age] years and she has been living with her grandparents in Vietnam since the applicant left Vietnam. Her second child, [the second applicant] is [Age] years old and her third child, [Master A], is [Age] years old.
The Tribunal heard that in 2004 the applicant and her husband borrowed 300,000,000 VND from her parents’ neighbour, who was a money lender. They were required to repay the loan within 5 years and to pay 10% interest each month. They repaid the interest only but could not afford to repay more. She said that the lender lived next door to her parents’ house, so when they could not make repayments she moved to her husband’s house which was a few hundred meters away. She said that the family of the lender came to her husband’s house and knocked down the door and demanded repayment.
The applicant said that she had an aunt living in Australia so they decided to escape to Australia to ask the aunt for money to repay the loan. She said that her aunt could not lend them money, so they stayed in Australia. I noted that she remained unlawfully in Australia for 10 years before seeking protection. The applicant said that she did not know about protection visas although she was aware that she was unlawful for that period of time.
I asked the applicant how much of the loan she and her husband repaid between 2004 and 2008 when they left Vietnam. She said that she does not know. She said that, after she moved to Australia, the lender visited her parents regularly to demand money and they destroyed things in their house. She does not know when they last visited her parents but’ it was a long time ago’.
The Tribunal was told that the applicant divorced her first husband on [Date] and he has remained in Australia. The sons live with their mother and step-father and have contact with their biological father every month. The applicant married [Mr D], an Australian citizen, on [Date]. She said that her sons are in good health. The youngest attends school but the older son has not been allowed to go to school because of his visa status. The applicant does not work as her visa does not allow work rights. Her current husband recently sold his business and is not currently working.
I asked the applicant why she cannot return to Vietnam. She said that she owes a lot of money and might be killed because the loan shark’s older brother is a gangster. I suggested that the lender may no longer be interested in her, given that it is 20 years since she borrowed the money and it is 16 years since she left the country. She said that she is very scared of them as ‘they cannot let it go’. She said that they kicked her in the belly once and the loan shark’s family is very aggressive. The loan shark’s family moved to the south from Hue Da Nang in the north, and she claimed that people in the north are more aggressive than people in the south.
The applicant said that she never reported the threats to the police as the police only act on really big issues. She cannot relocate because the gangsters will look for her everywhere. She said that her current husband will not accompany her to Vietnam as he has children from a previous marriage who live in Australia. Her current husband’s family lives in the same area as her family, so it is not an option for her to live with them in safety.
I asked about the current relationship between her parents and the lender, given that they are neighbours. She said that their relationship is fine and that they talk normally to each other. The lenders do not refer to the loan and do not cause trouble for her parents. She claimed that the lenders are waiting for her to return.
I advised the applicant that I had concerns with aspects of her evidence. Firstly, I said that I might not accept that she and her husband ever borrowed money from a loan shark and that she fears harm from a loan shark. Secondly, I suggested that, if I did accept that she had a debt to the loan shark, I might find that the loan shark is not interested in pursuing her given that 20 years have passed since she borrowed the money. The applicant confirmed that she has no loan documents or any other independent evidence of the loan or the threats. She said that she is really scared of the loan shark and is worried about her parents as they are over [Age] years old. She added that her sons are very settled in Australia and not familiar with Vietnam, so it would be very difficult for them to live in Vietnam.
At the conclusion of the hearing the representative asked the Tribunal to consider referring the matter to the Minister for consideration on the basis that the applicant’s youngest son is an Australian citizen.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ASSESSMENT OF CLAIMS AND EVIDENCE
Identity
The applicants’ nationality is not an issue. They travelled to Australia on valid Vietnamese passports and have consistently stated in documentation that they are nationals of Vietnam. The delegate did not indicate any concerns about the applicants’ identity or nationality. Therefore, I am satisfied the applicants are nationals of Vietnam and I have assessed their claims against Vietnam as their receiving country.
I also accept, on the basis of a birth certificate and consistent oral evidence, that the second-named applicant is a member of the same family unit as the first-named applicant.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[2] it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[3] See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact 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.
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[4]
[4] (1999) 197 CLR 510.
I find that there are aspects of the applicant’s evidence which cast doubt on the credibility of her claims. Her responses were vague when asked about the details of the loan. She has not provided any loan documentation to support her claim that they borrowed 300,000,000 VND. She claims that she does not know how much they repaid between 2004 and 2008 or how much of the loan was outstanding. I find this implausible. I also do not find it credible that the lenders lived next door to her parents, that they regularly harassed and threatened the parents and damaged their house when demanding repayment, yet they now exist peacefully without mention of the loan. I do not accept that the applicant would not know when the lenders last spoke with her parents about the loan. She claimed that she is very worried about her parents as they are aged, however she told the Tribunal that she does not contact them regularly. I find her evidence in regard to borrowing money from a neighbour, and the relationship between the neighbour and her parents, to be unreliable.
I place weight on the applicant’s delay in seeking protection in Australia. She was aware that she remained unlawfully in Australia for 10 years after her visitor visa ceased. This shows a blatant disregard for Australian migration law. I do not accept her claim that she did not know about protection visas, as she had an aunt living here who would have had some knowledge of visa requirements. During her first 7 years in Australia she had a child, arranged a divorce and remarried. Having demonstrated her ability to navigate these processes, I do not accept that she could not obtain information about a protection visa. I have had regard to Justice Carr’s findings in Subramanian V MIMA[5] that a delay in claiming refugee status is a legitimate matter which the Tribunal is entitled to take into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. Having considered the applicant’s circumstances, I find that the delay in seeking protection is inconsistent with her claim that she was escaping harm from a money lender in Vietnam and casts doubt on her protection claims.
[5] Subramanian V MIMA (1998) FCA. See also Selvadurai V MIEA & ANOR (1994) 34 ALD 346 at 349
Does the applicant meet the refugee criteria?
I did not find the applicant’s evidence to be credible and she has not provided any independent information to support her claims. If her parents and parents-in-law were aware of the applicant’s debt and had been threatened by the lender, I reasonably expect that they would be able to verify the claims, either by giving evidence at the hearing or providing written statements. Similarly, she has claimed that her aunt in Australia was aware of the situation and unable to lend her money, however she has not provided any corroborating evidence from her aunt in this regard. It is ultimately up the applicant to provide evidence to substantiate her claims and I find that she has not done so.
On the evidence before me I make the following findings:
I do not accept that the applicant and her first husband borrowed money from a loan shark and were unable to repay the debt.
I do not accept that the loan shark threatened them, assaulted them, or damaged their property.
I do not accept that the loan sharks threatened the applicant’s parents or damaged their house/belongings.
I do not accept that the applicant travelled to Australia to escape harm from the loan shark.
I do not accept that the applicant faces harm from a loan shark or from gangsters upon return to Vietnam,
At no stage did the applicant advance any other reason in her claims that she is owed Australia’s protection obligations. I therefore find there are no more residual claims to be considered.
I find that the applicant does not have a debt to a lender and has not been threatened or pursued by the lender. Accordingly, I find that that there is not a real chance the applicant would suffer persecution involving serious harm from a loan shark or associated gangsters should she return to Vietnam, now or in the foreseeable future.
Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution as required for the purposes of the definition of a ‘refugee’ contained in s.5H(1) of the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act as I am not satisfied that she is a refugee.
Does the applicant meet the complementary protection criteria?
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).
It is noted that 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 relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [3]
For the reasons given I do not accept that the first-named applicant borrowed money from a loan shark or was ever threatened or assaulted by a loan shark. It follows that I do not accept that she fears harm from a loan shark or their gangster relatives upon return to Vietnam.

Considering the applicant’s circumstances and having regard to the findings of fact set out above, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A). Accordingly I find that the first-named applicant does not satisfy s 36(2)(aa).
The second-named applicant relies on the same claims advanced by the first-named applicant. I have found that the first-named applicant is not a person in respect of whom Australia has protection obligations. It follows that the second-named applicant does not satisfy 36(2)(b) or (c) and cannot be granted the visa.
Request for referral for Ministerial intervention
In the event of an unsuccessful review application, the representative has asked the Tribunal to refer this matter to the Minister for consideration of the Minister’s power to intervene and grant the applicant vias pursuant to s 351 of the Act.
There are Departmental guidelines which set out what kinds of cases might result in Ministerial intervention, and also circumstances in which the Minister considers it would be inappropriate to intervene. Appropriate cases are those that have one or more unique or exceptional circumstances, such as described in the guidelines. One of the circumstances described is particularly relevant to this case:
Strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The guidelines also state that, for all cases referred to the Minister under these guidelines, the Department will provide information on any other relevant issues, including:
Circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.
Australia is a signatory to the Convention on the Rights of the Child. Article 3 states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. The applicant’s [age] year old son was born in Australia and is an Australian citizen. I submit that it is in the child’s best interests that his mother and brother be granted permanent visas so that his mother can remain in Australia to care for her Australian citizen child.
The Tribunal is satisfied that these factors constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s 351 of the Act, and it refers the case to the Minister for this purpose.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Catherine Wall
Member

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

[2024] AATA 4077

13 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice