1903169 (Refugee)

1903169 (Refugee) [2024] AATA 3885 (2 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903169
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Michael Simmons
DATE:2 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 July 2024 at 10:09am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam– religion – catholic believer – loan sharks – debt owed to loans sharks – vague, evasive and inconsistent responses – not satisfied that she has any debt or that she has any profile of interest with unofficial lenders or loan sharks – delay in applying for protection in Australia – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Vietnam, applied for the visa on 28 August 2018.
The applicant appeared before the Tribunal on 3 June 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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were she to return to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant claims she is a citizen of Vietnam. She had provided a Vietnamese passport which supports her claimed identity. I accept that the applicant is who she claims to be, and that she is a national of Vietnam. Vietnam is the receiving country for the purpose of this assessment.
Information in the delegate’s decision record indicates that the applicant first arrived in Australia in June 2016 on a tourist visa which expired in October 2016. She then applied for a protection visa in August 2018.
Protection claims
Visa application
The applicant states she and her family do not like the current Vietnamese government. She claims initially she wanted to leave Vietnam to study and develop her profession and skills. After spending time in Australia she appreciated democratic beliefs and human rights.
In Vietnam she could see the injustice. The government took away places of prayer and developed them for tourist places. She claims she is a catholic believer and that she often protested against the communist government. She stated: “On many occasions, amongst other students and professional workers, I was detained for 5 weeks after participating in the protest. I was told by the arrested Police I would be summoned one day to the court for my participation in the protest against the government”.
The applicant’s family also protested the toxic environment in [City 1], Vung Tau and the dumping of toxic chemicals by a Chinese company at [a] coast. Because her family family are protesting the government about the toxic environment in her hometown, the government can make warrant arrests at any time for them and for her. She claims: “Fishes are the source of business products for my family and other locals to generate income. We could no longer work or have food to eat because all the fishes are dead. Because of this, my family and some locals have expressed anger and protest, the Police have now warned if my family continues, we will be all detained and placed in prisons. As my family has been noticed and received warnings, if I return to Viet Nam, I have fears for being detained as well”.
The applicant did not try to relocate within Vietnam because there is only one government there who controls all citizens. Wherever she moves she will be interrogated. The Vietnamese government will not protect citizens who raise their voice, opinions or beliefs. The applicant’s family is actually expressing their anger and organising the protests.
Tribunal hearing
At the start of the hearing, I explained to the applicant the refugee and complementary protection criteria. She told me that “this is the first time I heard these criteria, but I reckon I don’t fall into any of them. I am not involved in any political or religious activities”.
She then told me that her application was made through assistance from a third party who she was introduced to by a friend. She claims that prior to the Tribunal hearing she did not know what was in her protection visa application. She told me she did not know a protection visa application was being lodged on her behalf or what it was for. She said that: “I told them my story that I had a big loan in Vietnam and I was under threat. My friend told me that they knew someone who could help me to apply for a visa so I could work here and pay back the debt”. After the visa was lodged, she came to know it was for a protection visa.
I asked her again if she believes she meets the refugee or complementary protection criteria. She stated “perhaps in the earlier stage I did not understand what this visa was. After 6-7 years living in Australia now I think I have got some understanding. Perhaps I do not fall into these criteria. I am begging you for an opportunity to remain her for another period of time, enough to earn enough money to pay back the debt”.
I invited her to tell me about the debt. She described a car accident in 2008 that killed her mother and injured her husband, daughter and herself. Her daughter became paralysed from a brain injury. She said she had to spend everything for her child and had no more money. She wanted to find a way to earn money to save her daughter. She always wanted to go overseas to earn money.
I asked who she owed money to. She detailed how she spent all the money she had and had to borrow money from friends, and then from loan sharks. She has not documents relating to the money she owes. She told me that she owes more than 1 billion VND to loan sharks.
I read to the applicant the claims raised in her protection visa application and she confirmed that they did not reflect her lived experience or her future futures. She confirmed that she is not a catholic believer and that she had never protested against the Vietnamese authorities. She confirmed that her and her family have never protested over environmental degradation and chemical dumping. She confirmed these details are not accurate and stated she was not aware they were included in her visa application.
She confirmed to me that she only fears returning to Vietnam because of the debt owed to loans sharks, and she has no other reason to fear returning there.
Consideration
I discussed with the applicant about her problems with the loan sharks, her future concerns were she to return to Vietnam, and her experiences in Vietnam and Australia more generally. Overall, my impression of the applicant’s oral evidence was that she was not forthcoming in providing information, even when squarely asked. During the hearing her evidence on various points evolved or shifted when pressed for detail or presented with new information. Her responses were often imprecise and were generally not persuasive. She has not provided any corroborative material to support her claims related to the debt owed to loan sharks.
The applicant suggested to me, more than once, that in her view she did not meet either the refugee or complementary protection criteria after these were explained to her. She also told me that she renewed her Vietnamese passport in 2023 because she thought she “had a very low chance to get a protection visa”, and one day she might be forced to go back to Vietnam and she would not be able to do this without a passport.
I put to the applicant that I was concerned she was in Australia unlawfully for two years without taking any steps to apply for a protection visa, and that did not suggest to me that she feared returning to Vietnam for any reason at that time. She told me that she had asked around her friends and spoke to a migration agent about her situation but was told that she could only apply for a visa at that time if she married someone. I have doubts that if she did disclose to a migration professional that she feared for her safety in Vietnam owing to the claimed loan shark debts, that they would not have raised the possibility of a protection visa with her.
After her tourist visa expired and she was unlawful for an extended period, then her friend told her she could apply for a protection visa so she could remain in Australia and work to pay back the debt. This is when she first found out about protection visas, that is why she applied for one in August 2018. However, the applicant also told me that when she renewed her Vietnamese passport in Australia in 2023 and that this was when she first came to know that a protection visa application had been submitted on her behalf.
She paid an agent in Melbourne $5000 to submit the protection visa application. When that application was refused in February 2019 she consulted a lawyer and showed them the decision record. That lawyer said that they could not tell her what was said in her visa application or the decision record, and refused to do so, and said she needed to go back to the original agent. She only found out what was in the decision record at the Tribunal hearing.
I expressed to the applicant that I was concerned she had sought assistance from various agents, lawyers and friends in relation to her migration status after entering Australia in 2016. Despite this, the Tribunal hearing was the first time that she had disclosed the true reason she feared returning to Vietnam – namely, due to the loan sharks. She replied that she has been living in Australia for eight years but did not dare to let many people know about her situation. She did not understand English or how things work in Australia so she just followed the advice of people that she knew. However, I noted that she also told me she told the agent who prepared her protection visa application about the loan sharks and she does not know why this problem was not mentioned in that application.
The applicant told me that she has been working in Australia since June 2016. She also told me she has no money and has never made any repayments on the money she owes, but she would like more time in Australia to work to repay the debt. Given she has made no repayments I asked how long it may take for her to repay the money that is owed. She indicated she was unsure. I asked when the last time was that the loan sharks contacted the applicant or her family. She indicated that this was about five years ago, and that she thinks they are tired of chasing her.
I asked if the applicant ever sought help from the Vietnamese authorities in relation to her financial situation. She said there was no way to talk to the authorities because she had no documents and the authorities would not care. I put to her that reporting suggests the Vietnamese authorities recognise the seriousness of illegal moneylending and have demonstrated a willingness to tackle the activities of illegal moneylenders and loan sharks.[1] She replied that she had heard of this policy.
[1] Country of Origin Information Service (COIS), ‘Common Claims Vietnam’ June 2024.
Prior to coming to Australia, the applicant lived in Ho Chi Minh City. She owned two houses there but sold them both. I asked the applicant if she could move somewhere else in Vietnam to get away from the loan sharks. She told me that she thought about this but she has no money to go back to Vietnam, and she just wants to have a job here to earn some money.
I asked why she could not move to Quang Nam Province to live with her father to avoid the loan sharks. She told me she moved out of home when she was [age] and her mother died when she was [age], so she does not dare to go back to her father because her family is broken and she does not want to bring trouble to him. I noted that before she expressed a desire to send money to her father because he was unwell, but now she says she cannot live with her father because her family is broken. I asked her to explain these two positions. She said she decided not to live with him because she has no money, and if she returns she would be a burden because she has no money. And if he knew about her situation with the debt it would be a big shock for him. I asked why she could not get a job if she moved to Quang Nam, and she said if she moved to Quang Nam her father would question why she did not live with him. I said it was also unclear to me why she could not do this. I asked her if she could explain to him that she took on the debt to take care of her daughter after the accident. She replied that her father knew about this and that they sold their assets to look after their daughter and knew about how they borrowed money until their divorced, he did not know the applicant borrowed money to come to Australia. Her responses did not explain why she could not live with her father were she to return to Vietnam.
The applicant was not forthcoming in providing details about her family’s whereabouts which causes me to doubt the reliability of her evidence. I asked about her family in Vietnam and she confirmed that her husband and daughter were living in Vietnam. We discussed her children and she told me that she also has a son. Later in the hearing she told me that she did not mention it earlier, but her husband was in Australia. She told me that she travelled to Australia with her husband but they had actually divorced prior. I asked her who was taking care of her children in Vietnam, and she then told me that both her children were also in Australia and had travelled together with her and her now ex-husband. I put to her that she did not disclose this when I asked he directly earlier where her husband and children were, and she replied that “there was no question about that”.
On 14 May 2024 the applicant emailed the Tribunal a ‘prehearing information form’ signed by her and dated 13 May 2024. That form requests the details of all family members in Australia, however the applicant only provided her details. I showed her a copy of the form that she completed. She replied that she did not understand the form. She said that she used google translate to understand the form. I noted that she wrote to the Tribunal on 12 May 2024, in response to the email which sent out the pre-hearing information form and stated “sorry I don’t know how to read this I have asked someone to explain it to me”, suggesting that someone had helped her to understand the document. I put to her that it seems she was not upfront about her family being in Australia. She replied that she did not ask anyone to read it for her, she consulted google translate only, but she thought she could not write in her email that she was using google translate so she wrote in her email that someone had read it to her.
I asked what visa the applicant’s husband and children have. She replied that she does not know but she thinks it is a spouse visa. He had a girlfriend from Australia and they got married. The girlfriend came to Vietnam to visit her husband before they travelled to Australia, and the applicant met her. I asked if her husband migrated to Australia on a partner visa which included their children. She told me that they travelled to Australia together on the same visa as her. However, the husband had already started his relationship with the Australia citizen at that time. She does not know if her husband or children ever applied for a protection visa.
Her children now live with their father. She does not know exactly where they live but it is somewhere in [a suburb]. I asked how often she sees her children and she said it has been about a year since she saw them because she is too busy and has too many things to worry about and she feels reluctant to visit them. She only sees them if they have a party or something like that.
I noted that she previously linked her financial problems and the debt she took on which caused her to fear returning to Vietnam to her daughter’s accident and medical condition. In that context, given they now live in the same city it strikes me as unusual that she would not see her daughter for over a year because she is busy. She replied that she does not have good work at the moment and she has no money so she cannot take care of her children. They live with her ex-husband and his wife. She feels shameful. She also has to work to pay the debt.

The applicant was also not forthcoming in providing details about her prior travel. The applicant confirmed to me that she had never travelled outside of Vietnam before coming to Australia. I then put to her that her passport indicated that she travelled to [Country 1], and she told me that she took a day trip there with her friend. I noted that the passport stamps indicated that she went there for about five days. She asserted she was only there for one day. She then said she could not remember exactly how long the trip was as it was a long time ago. I asked her what the purpose of this trip was and she said it was for tourism because she wanted to know [Country 1]. I put to her that this was two years before she came to Australia. She had told me previously that at that time she was experiencing serious financial hardship and she had debts owing to loan sharks. I asked why she would take over first overseas trip at that time and decide to go an on a holiday with her friend. She said from Vietnam to [Country 1] only cost a small amount of money. I asked why she told me earlier he journey to Australia was the first time she left the country. She replied that she misunderstood and thought of foreign countries like Australia, the US or Canada. Countries far away. She did not think of [Country 1] as a foreign country. I am not prepared to accept that she would so easily forget the first time she had ever travelled abroad because it was to a neighbouring country.
The applicant has provided vague, evasive and inconsistent responses about when she came to know a protection visa application was lodged on her behalf and when she learned what claims were made in that application. Given she told me that she variously consulted with different friends, agents and lawyers while in Australia, I do not find her claim to have only learned of the claims raised in the protection visa application at the Tribunal hearing to be credible. Given her evidence about exploring her migration options while in Australia, I also consider the delay of two years in applying for a protection visa after arriving, and the significant delay in raising what she identified as the actual protection claims - namely the loan shark claims, raises significant doubt as to the veracity of that claim. Her suggestions to me during the hearing that she thinks she has a low chance of getting a protection visa and that she does not meet the refugee or complementary protection criteria, along with her decision to renew her Vietnamese passport to facilitate a possible return there, also in my view cast doubt over the sincerity of her claimed future fear of harm in Vietnam. Various aspect of the applicant’s evidence was unpersuasive. Despite indicating on multiple occasions that she needs more time to work in Australia to pay back her debt, she also told me that she has never made any repayments on the loan at any time, including during the eight years she has already been working in Australia. She indicated that she took on the loan sharks debt to support her injured daughter, however, she also told me that she only sees that daughter and her son around once a year in Australia because she is busy, has no money and feels shame. During the hearing, the applicant also changed her evidence in respect of her prior travel and the location of her children and ex-husband. On the entirety of the material before me, I do not regard the applicant’s loan shark claim to be credible. I am not satisfied that she has any such debt or that she has any profile of interest with unofficial lenders or loan sharks in Vietnam.
I am not satisfied on the evidence before me, that the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were she to return to Vietnam. The applicant does not have a well-founded fear of persecution for any s.5J(1)(a) reason. The applicant is not a refugee per s.5H.
A ‘real risk’ and ‘real chance’ involve the same standard.[2] For the reasons set out above the applicant also does not face a real risk of any harm including treatment amounting to significant harm in Vietnam. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
[2] MIAC v SZQRB (2013) 210 FCR 505.
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.
Michael Simmons

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 3885

2 July 2024

Key Legal Topics

Areas of Law

Immigration

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