1902701 (Refugee)

1902701 (Refugee) [2020] AATA 1551 (26 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1902701
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mara Moustafine
DATE:26 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2020 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – government crackdown on Roman Catholics – house and business confiscated – imputed political opinion – father’s protest against seizure of land – no personal harm – cancellation of student visa and unlawful residence – criminal conviction and imprisonment – credibility – inconsistent evidence – some claims conceded to be false – late claim of rape by relative and pregnancy – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 116
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 4 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is citizen of Vietnam.
She arrived in Australia on a Student visa [in] May 2013. Her visa was cancelled [in] March 2016 under s116 of the Migration Act and this was affirmed by the Tribunal [in] December 2016. The applicant remained in Australia unlawfully and was remanded in custody on [criminal] charges [in] December 2018.
On 4 January 2019 the applicant applied to the Department of Home Affairs for a Protection visa. A delegate of the Minister refused to grant the visa on 4 February 2019.
On 6 February 2019 the applicant applied to the Tribunal for a review of the Department’s decision. She provided a copy of the decision to the Tribunal for the purposes of the review and is therefore taken to be on notice of its findings and reasons.
Evidence before the Department
Protection Visa Application
According to her Protection visa application form, the applicant is a Vietnamese citizen born on [Date] in [Nghe] An province, Vietnam, of Kinh ethnicity, Catholic religion and unmarried. The applicant stated that she attended [schools and university]. Her parents, brothers and sisters live in Vietnam and she has a cousin living in Victoria, Australia.
In her application form the applicant stated that she did not experience harm in Vietnam. Her family sent her to Australia to have a better education and future, when they thought that they could afford to support her financially. In late 2015 her family’s future was shattered when the Vietnamese government cracked down on anyone who was involved in Catholic practice in her home town. As one of the board members of the [Catholic] Church, her father was prosecuted for going against the communist authorities. Their home and businesses were confiscated and her mother and siblings were forced to separate and lived in different locations. The applicant was shocked and bewildered as she could no longer afford to continue her study in Australia, nor go back to Vietnam to face the same fate as her family. However, she did not know that she could apply for a Protection visa as a refugee until recently.
The applicant fears she will be harmed if she returns to Vietnam and be treated in the same way as her family members, including being jailed or subjected to strict movements and lose her personal freedoms. As her family are treated as anti-government people, they cannot be protected by local authorities and cannot relocate.
Protection Visa Interview
The applicant was interviewed by the delegate on 4 February 2019. The Tribunal has listened to the audio recording of the interview and is satisfied that the summary of the interview in the decision record dated 4 February 2019 provided to the Tribunal by the applicant is accurate.
The applicant told the Department that her father had run his own [business] for about 10 years, currently employing [number of] people, including one of her brothers. Apart from her two married siblings, the others all lived with her parents at the family home.
The applicant gave a significantly different account as to why she could not return to Vietnam to that in her Protection visa application. At interview she said it was because her father had been jailed for a year in 2015 because he had protested over the seizure of some land registered in his name by the local government authority and argued with an official over this. When the Department raised the inconsistency between this account and her claims in her Protection visa application that her father had been arrested because he was a Catholic, the applicant said that it was because he was a Catholic that his land was taken from him. However, she confirmed that her father had never been arrested specifically because of his involvement with the Catholic Church.
Department’s decision
In refusing to grant the applicant a protection visa, the delegate concluded that change in the applicant’s claims was significantly adverse to the credibility of any claims that her father faced problems from the Vietnamese authorities for any reason, nor that her family were living anything but normal lives in Vietnam. He did not accept that the applicant was a person in respect of whom Australia had protection obligations either under the refugee or complementary protection criterion.
Application for Review
The Hearing
The applicant appeared before the Tribunal on 20 February 2020 to give evidence and present arguments.
At the hearing the applicant submitted documents in support of her claims, including a personal statement dated 19 February 2020 outlining why she could not return to Vietnam; a statement dated [February] 2020 from the Coordinator of [a Church organisation] attesting to her weekly attendance at Catholic Mass and participation in services; and letters relating to a medical condition.
Key relevant points in the applicant’s statement were as follows:
·     The applicant lived with her [associate] in Vinh from the age of [age], only going home once every two months. During this time she was subjected to sexual abuse by the [associate]’s husband and son. Although she did not understand that this was ‘child sexual assault’, she said nothing to her parents. When the abuse ‘became too overbearing’ she told her parents she wanted to move out and live with her cousin who had moved to Vinh, where she stayed until [specified year].
·     After high school, [her] parents sent her to live with her [Relative 1] in South Vietnam to study [as] her parents wanted her to go to [Country 1] to study. He sexually abused and raped her on many occasions without the knowledge of her family. Two months after the last time he raped her he called her and told her to take a pregnancy test. She did so and discovered that she was pregnant. He tried to intimidate her, telling her to get rid of the baby and threatened that, if she told her parents he had raped her and made her pregnant and kept the baby, he would kill her and her unborn child. At the time she ‘did not know anything about sex’ as sex and reproduction was not taught in school. The only thing she knew was that it was against the Catholic religion to abort a child.
·     The applicant finally told her mother, who did not tell her father that the child was her [Relative 1]’s as she feared her father would kill the [Relative 1]. Instead the applicant’s mother and grandmother sent her away to have the child and after it was born, they arranged for someone to bring the child to her parents to raise as their own.
·     After the birth of her [child], the applicant continued to study [at] college. However, as the applicant was falling into depression, when the child was [age] years old her parents decided to send her to Australia, where she arrived in May 2013.
·     In 2014, her parents told her that they had incurred a large debt as the aunt for whom they had borrowed money in 2009 had failed to pay them back. Therefore, they could no longer support the applicant financially, so she had to work and study together.
·     In 2015 the Vietnamese government took her parents property, which was ‘the last one (they) could sell to pay a part of their debt’. They believed this was because they were Catholics. After her father protested he was jailed for a short time.
·     In December 2018 she was arrested by police while visiting a friend’s house, where he was [doing something illegal] as they assumed she was involved in this. She pleaded guilty on legal advice that she would receive 25% discount on her sentence. Having served 8 months of her 10 month sentence she was released from prison on [in] October 2019 and has been in [Immigration detention] since then.
·     She is suffering from a [Medical condition] on her [Body part] requiring surgery. Australia is her best chance of having the necessary medical attention as her family does not now have the resources to pay for her operation. Her family were prepared to borrow money to send her to [Country 2] for surgery but this option is no longer available because of their debt.
·     She fears that, if she returns to Vietnam she and her [child] will be at risk of harm from her [Relative 1] who threatened to kill her and her child during her pregnancy. Her [Relative 1] is still looking for her and her child as he knows she kept the child against his wishes, although he does not know where the child is. He has made numerous attempts to try to find her and threatened her family.
·     She fears for her safety even if she moves to a different area of Vietnam as she believes her [Relative 1] will still find her. It will also be difficult for her to support herself or find adequate employment due to her health condition.
·     She is grateful to have been given the chance to live in Australia and regrets that she now has a criminal record and decided to stay unlawfully after her visa was cancelled.
At the start of the hearing the applicant initially confirmed that the evidence she had given to the Department and Tribunal to date was true and correct. However, when asked if she wished to make any changes or to add anything to her evidence, the applicant told the Tribunal that she wished to change the reason she feared harm in Vietnam. The applicant said that while she had claimed that the Vietnamese government had taken away her family’s land, this had actually happened to a friend’s family, not hers. She claimed that, when she was imprisoned, an agent, who was an acquaintance of her aunt, told her she should apply for a Protection visa because they wanted to bail her out. She made the claim in her application about the land being taken away on the agent’s advice as her mental state was still confused. The applicant confirmed that she did not wish to make any other changes.
The Tribunal discussed with the applicant her background, family, current circumstances and claims for protection. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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.
Credibility
The mere fact that a person claims fear of 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, reasons and findings
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For reasons outlined below the Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in her evidence about key aspects of her claims over the course of her Protection visa assessment process and other reasons detailed below.
As discussed with the applicant at hearing, the Tribunal is concerned at the major shift in her claims over the course of her Protection visa application process as to why she feared harm in Vietnam. In her Protection visa application form the applicant indicated that she had not experienced harm in Vietnam. She stated that she was afraid to return to Vietnam because her father had been prosecuted in 2015 over his involvement with the [Catholic] Сhurch. As a result the family’s home and businesses were confiscated and her mother and siblings were forced to separate and live in different locations. The applicant feared that she would face the same fate as her family if she returned. By contrast, the applicant told the Department at her interview that her father was jailed in 2015 for protesting the seizure of his land by the local government authority. While she alleged that her father’s land was taken because he was a Catholic, she confirmed that he had never been arrested specifically because of his involvement with the Catholic Church.
In her evidence to the Tribunal the applicant introduced entirely new claims as to why she feared returning to Vietnam. In her written statement to the Tribunal and evidence at the hearing, the applicant alleged that as a child in Vietnam she had been subjected to sexual abuse by her [associate]’s husband and son while living with them for several years and that, when she was [age] years old she was raped and made pregnant by her [Relative 1]. At the time her [Relative 1] threatened to kill her and her unborn child if she did not abort it, which she did not do. She fears that if she returns to Vietnam her [Relative 1] may harm her and her [Child] as he was still looking for her. She said she was not sure what he would do to her if he found her and that her [Child] would not be safe.
The Tribunal has noted the applicant’s evidence at hearing that her initial claim that her family’s land had been seized by the Vietnamese government was false, as well as her explanation that she gave this evidence on the agent’s advice at a time when she was mentally confused after her arrest (paragraph 16 refers). However, the Tribunal finds this disingenuous, given that the applicant did not take the opportunity to correct her false claim at her Department interview and maintained it in her written statement of 19 February 2020, which she provided to the Tribunal at hearing (paragraph 15 refers).
The veracity of the applicant’s evidence is further undermined by inconsistencies between the information she provided in her Protection visa application form and the evidence she gave at hearing regarding her education. The applicant told the Tribunal that her [Relative 1] raped her while she was living with him in Ho Chi Minh City and studying in 2009 and that after her [child] was born she studied, but did not complete, [Subject 1] at [a college] in Hanoi between 2010 and 2013. However, none of these institutions are listed among those she identified in the Education section of her Protection visa application form. Instead the applicant stated that she ‘Completed (Passed)’ [Subject 1] at [University]. Moreover, while the applicant told the Tribunal that she attended the same school in Vinh [for] her [school] education, in her Protection visa form she indicated that she only attended [Name 1] Primary School, and then went to [Name 2] Middle and High School.
As discussed with the applicant, the fact that she had given three different accounts as to why she feared harm in Vietnam raises doubts about her truthfulness and general credibility. The applicant responded that she made her initial application for a Protection visa at the suggestion of an agent who was arranging for her to be bailed out and said whatever she was told as she was very stressed at the time. As to why she told a different story when interviewed by the Department, she again attributed her false declaration to being in prison and dependent on the agent and not in a very calm mental state. She claimed that, as she was now face to face with the government in this matter for the first time and had taken an oath, she was telling the true story.

Asked why she had made no mention of the sexual abuse she suffered in Vietnam from her [associate]’s husband and son and rape by her [Relative 1] until her Tribunal hearing, the applicant said she had only recently learned from the Internet that these kind of claims fell within the Protection visa criteria of the particular social group of people subjected to unfair treatment.
The Tribunal has considered the applicant’s explanations above, as well as her evidence that she was prepared to say whatever her agent allegedly told her in an effort to be granted a Protection visa. As discussed with the applicant, in the Tribunal’s view, she fabricated her evidence to the Tribunal after her earlier claims proved unsuccessful in securing her a Protection visa. Notwithstanding her claim that she was telling the true story as she had taken an oath to tell the truth at her hearing, as pointed out to the applicant, in her original application form, she made a declaration that she had provided correct information in every detail and affirmed this in her interview with the Department.
As discussed with the applicant, the Tribunal also considers relevant the timing of her Protection visa application. As noted in the Department’s decision, when she was given notice that her Student visa might be cancelled in March 2016, the applicant made no mention of any fear of harm in Vietnam when given the opportunity to provide reasons why it should not be cancelled. While the applicant applied for a review of her cancellation decision, she told the Tribunal that she failed to attend her scheduled hearing because she was afraid she would be sent back to Vietnam, but chose to remain unlawfully in Australia. By her own evidence, it was only after her arrest [that] the applicant applied for a Protection visa at the suggestion of her agent in order to be released on bail. The Tribunal finds disingenuous her comment that until now, she was not sure if she was eligible for the grant of a Protection visa.
At hearing the applicant indicated that she was afraid that the Vietnam government might treat her badly if they learned about her criminal record in Australia. As discussed with the applicant, as noted in the latest DFAT Report on Vietnam:
According to the Ministry of Justice, the principle of double jeopardy applies in Vietnam: persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subjected to further trial in Vietnam for the same crimes[1].
[1] DFAT, DFAT Country Information Report Vietnam, 13 December 2019, p.36
While the applicant responded that she could not believe what the government said, the Tribunal notes that the principle of double jeopardy is regulated in the Vietnamese Constitution, Penal Code and Criminal Code (2015) and referenced in the Law on Mutual Assistance (2008).
Summary Findings
Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about her experiences in Vietnam and the reason she fears harm there or that any of her evidence can be relied upon. The Tribunal is not satisfied that while in Vietnam the applicant was sexually abused, raped or made pregnant by her [Relative 1], nor that he threatened to kill her and her unborn child if she did not have an abortion or that she gave birth to his child against his wishes. The Tribunal does not accept that the applicant’s [Relative 1] is still looking for her, nor that he has threatened her family. Neither does the Tribunal accept that the applicant was sexually abused by her [associate]’s husband or brother or suffered any other harm while living in Vietnam.
The Tribunal accepts the applicant’s evidence that she falsely claimed that her family’s land was seized by the Vietnamese government and that her father was never arrested for his involvement with the Catholic Church in Vietnam. The Tribunal is, therefore, not satisfied that the applicant’s family’s home, land or businesses were confiscated or her family forced to separate and live in different locations because they were Catholics, nor that her father was prosecuted or jailed for protesting against the seizure of his land or going against the Vietnamese authorities for any other reason.
It follows that the Tribunal does not accept that, if she returns to Vietnam, the applicant will be harmed or treated as an anti-government person, including being jailed or subjected to strict movements or losing her personal freedoms. Nor does the Tribunal accept that the applicant will face serious harm at the hands of her [Relative 1] in Vietnam, as claimed.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that if the applicant were to return to Vietnam now or in the reasonably foreseeable future, she would face persecution for one or more of the reasons contemplated by s.5J(1)(a) of the Act or that the applicant has a well-founded fear of persecution. In the Tribunal’s view, the applicant fabricated her claims in order to be granted a protection visa in order to remain in Australia.
The Tribunal has also considered the applicant’s claims under complementary protection. The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. It is therefore not satisfied that 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 she would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.
On the basis of medical documents provided, the Tribunal accepts that the applicant is suffering from a [Medical condition] on her [Body part], which she has had for some time and that she would like to have medical treatment for it in Australia. Although the applicant has claimed that it requires surgery, she provided no documents to support this diagnosis. The applicant indicated in her statement that her family was prepared to borrow money to send her to [Country 2] for surgery but were unable to do so as they had been unable to reduce their debt as the Vietnamese government had seized the land they could sell for this purpose. As the applicant told the Tribunal at hearing that her family’s land had not, in fact, been seized by the government, the Tribunal is not satisfied that they could not pay for her operation, should one be necessary. Nor does the Tribunal accept that her family would be unable to offer the applicant some support if she returns to Vietnam, even if the Tribunal were to accept that they incurred a large debt on account of her aunt, which it does not.
The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
CONCLUSIONS
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).
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).
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.
Mara Moustafine
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.
…

[2020] AATA 1551

26 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction