1905083 (Refugee)

1905083 (Refugee) [2023] AATA 2583 (6 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ngoc Anh Donald
CASE NUMBER:  1905083 & 2207555
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:6 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 06 July 2023 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – combined reviews after application bars lifted – religion – Roman Catholic – membership of particular social group – divorcee threatened by ex-husband and his brother – political opinion – family land appropriated without compensation and harassment and threats by authorities – illegal boat departure – country information – cumulative factors – state protection not available – members of family unit – second marriage to Australian citizen – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (c)(i), 48A, 65, 91K, 427(2)
Migration Regulations 1994 (Cth), 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 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 19 February 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 18 July 2016.
The Tribunal determined that there was sufficient material before it for a favourable decision to be made. Therefore, the hearing which had been scheduled for 3 July 2023 at 10am was cancelled and the decision was remitted on the papers.
The applicants were represented in relation to the review.
There are no non-disclosure certificates on the applicant’s file.
The applicants provided birth certificates, household registration books with translations to the Department in lieu of passports to identify themselves. In the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of Vietnam and has assessed their claims against that country in relation to s36(2)(a) and s36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of 36(3) of the Act.
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 applicants will be harmed in Vietnam for their Catholic religion, for divorce and family matters, for a land dispute and for leaving Vietnam via boat (illegally). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The primary applicant is a [Age]-year-old born on [Date] in Xuyen Moc Vietnam and she has three children who were also born in Vietnam. She is divorced from her first husband and has since remarried in Australia to an Australian citizen. The applicant first arrived in Australia as an IMA [in] April 2013.
The secondary applicants are [the second applicant] born [Date], [the third applicant] born [Date], and [the fourth applicant] born [Date]. They came to Australia via boat with their mother and father in 2013.
The primary applicant applied for the first visa on 20 July 2016 and the subsequent visa on 16 October 2020. She then applied for review of the first refusal on 5 March 2019 and review of the second refusal on 24 May 2022. Both applications are post bar lift applications with the first application lodged following the s91K bar lift and the second application lodged post the s48A bar lift. s427(2) of the Act provides that the Tribunal must combine two or more Part 7-reviewable decisions made in respect of the same person.
The applicants claims for protection can be summarised as follows:
·The applicant is a Catholic.
·The applicant was involved in a family land dispute and the authorities took her family property. The authorities gave the land to [a Company].
·Due to the harassment by the authorities, they had no choice but to give up their land.
·After they had given up their land the authorities continued to harass the family so they would not complain about the loss of their land.
·The authorities also made it difficult for the family to make other arrangements.
·When her family was protesting, they received threats.
·The authorities were not willing to assist the family and when they opened a [business], they made it difficult for them.
·They ended up competing with each other and it ended in violence.
·The applicant fears her children would not be given a fair chance and will be harassed by the authorities.
·She left Vietnam illegally and she could be jailed upon return.
·Her husband is emotionally and physically abusive to her and she left him in September 2016. She got a protection order against him.
·Her husband and his brother have threatened her with severe violence if they return to Vietnam.
The secondary applicants are the children of the primary applicant, and their claims rely on their mothers’ claims.
Current country information is available from DFAT and highlights the realities of the issues the applicants would face should they be returned to Vietnam. [1]
[1] DFAT Country Information Report Vietnam January 2022.
Catholics 3.22
While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.
3.23 The Catholic Church is, by definition, united and can deal with the Government at a national level across Vietnam. Provincial authorities might also have relationships at the diocesan level; sometimes local DFAT Country Information Report VIETNAM January 2022 15 relationships are better than the national level relationship. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered.
3.24 Most Catholics worship in churches as part of parishes. Some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches.
3.25 Some Catholic communities are growing in size with evangelism or welfare efforts. This can occur especially where the local Catholic communities have good relationships with the Government. Some sources report that Catholic missionaries and officials have had difficulty reaching more remote parts of the country in recent years, which might be related to COVID-19 restrictions. Written materials, such as newsletters, websites and social media materials exist, but their maintenance, distribution and promotion do not appear to be a priority for Catholic leaders.
3.26 There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.
3.27 The ‘Red Flag Association’, a militant pro-Government movement allegedly under the direction of local governments, was reported to have disbanded in 2018. Red Flag Association activity included protests outside Catholic churches. In-country sources told DFAT that these protests have not occurred in the last two years and that such activity is now more likely to be online.
3.28 Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished, and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades. That process continues, including during the COVID-19 pandemic, reportedly in return for cooperation of the Church with authorities during the pandemic.
3.29 Church officials do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources told DFAT that individual Catholics or communities have relationships with the diaspora overseas, including in Australia, and these relationships are generally unhindered.
3.30 In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.
3.31 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence. See Political Opinion (actual or imputed).
Land and environmental compensation disputes
3.65 Protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land and landowners allege low levels of compensation, which sometimes leads to protests. A recent prominent example was the January 2020 Dong Tam commune incident in which three police officers and a civilian were killed. The Dong Tam commune protests had been occurring for some years; protesters’ trials concluded in 2020 with some protesters receiving the death penalty and others life in prison for charges that related to the deaths of several police officers. Social media commentary on the issue later led to arrests of, and prison terms for, those commenting, demonstrating the sensitivity of the issue.
3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
3.67 It is difficult to predict when a protest will escalate or attract Government attention. As with other protests, Government action might depend on the local government authority and its priorities. Overall, DFAT assesses that land and environmental protesters face a moderate risk of official discrimination.
Women
3.71 Discrimination against women is banned by the Vietnam Constitution (article 26). The UN Development Programme 2019 Gender Equality Index (the most recent) ranked Vietnam 65th (with 1 being the most equal) out of 162 countries. Australia ranked 25th. The International Labour Organization notes on its website that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than do men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.
3.72 Women’s labour participation rate is one of the highest in the world at 73 per cent in 2019, according to World Bank data (Australia’s female workforce participation rate was 61 per cent in the same year). DFAT has heard from sources that some women have been fired for becoming pregnant, which may be an illegal, but nonetheless practised, condition of employment. Women over 35 may also have difficulty finding employment and DFAT is aware that some women claim that they were terminated at that age for age-related reasons. In-country sources told DFAT women have been disproportionately affected by COVID[1]19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.
3.73 Traditional views about family disadvantage women. Son preference continues, as in other Asian countries, where the traditional view is that sons and men, rather than daughters and women, carry on the family name and traditions. The problem of ‘missing girls’ and unnaturally high numbers of male births compared to female births result. Over time these preferences are lessening (but are still present) and women can now legally inherit assets.
3.74 Vietnam has family planning policies that theoretically restrict the number of children a woman can have. DFAT understands family planning policies are not strictly enforced and it is common for families to have more than the allowed two children. Today, there are few, if any, practical consequences for having more than two children; children would not be denied healthcare or education and their parents would not be punished.
Domestic violence
3.75 Violence and threatening violence against women is against the law. Spousal rape is illegal. The issue is not taboo and is discussed in the media. Some CSOs addressing women’s rights have freedom to operate and agitate for reform, and they participate in training police and judicial officers. A government survey, supported by DFAT in 2020, found that 63 per cent of women have experienced some kind of (physical, sexual, emotional, behavioural and/or economic) abuse from husbands or male partners.
3.76 Attitudes towards domestic violence are underpinned by a number of cultural factors, including traditional views of family, marriage and ‘saving face’, and the common practice for women to live with their husband’s family. Local sources noted women are expected to be a ‘good wife’ and those who experience violence may be labelled by society, families or authorities as a ‘bad wife’; violence against them is considered to be their fault. Victims of domestic violence may experience feelings of shame or failure. The concept of honour is commonly linked to female sexual assault; marriage prospects may be considered damaged for rape victims. Police reportedly often encourage victims of domestic violence to ‘solve their problems within the family’ rather than bringing criminal charges. If legal action is pursued it is often civil rather than criminal action. The combination of societal and cultural attitudes, and the lack of availability of state protection, means women may not seek assistance unless the situation is life threatening, if at all.
3.77 Shelters might be provided by the Government or NGOs. In-country sources generally agreed that shelters are safe and clean and have adequate (though perhaps basic) food and hygiene facilities. All sources consulted by DFAT agreed that availability is a problem, with many services being at or beyond capacity. Stays are limited to six months with possible extensions. After six months, an assessment is made and women might be returned to their community, or might go elsewhere to engage in an economic activity for which they have trained in the shelter. Some women receive vocational training in shelters or have access to referral services (such as medical or legal services) but these services are not available to all victims. Women outside cities may be far away from shelters, which acts as a practical barrier to accessing services.
3.78 DFAT understands that the vast majority of women experiencing domestic violence do not access shelters or other help. Some women access services outside of shelters. Grassroots services that provide information and training, referrals and other informal support also exist including in areas where shelters are not available. Domestic violence hotlines run by CSOs in partnership with Government are also available. These services reported receiving a very high number of calls during the COVID-19 pandemic and associated lockdowns. Women might not know about services, especially in rural areas, and services must balance confidentiality to protect residents and availability for women in need.
3.79 In-country sources told DFAT mixed things about authorities’ responses to domestic violence. Domestic violence claims are often legally pursued as civil rather than criminal matters. Sources told DFAT that women who are ‘brave enough’ to contact authorities might be ignored or receive cursory and ineffective help, such as police telling a perpetrator not to ‘hit so hard’. Local authorities might deny that domestic violence occurs despite evidence to the contrary. Police might not understand legislation or policies or also be subject to traditional thinking that sees victims of domestic violence as ‘bad wives’. A common theme mentioned by in-country sources was that police responses are mixed – sometimes they will attend and arrest perpetrators, other times they will be dismissive.
3.80 Relocation may be difficult or impossible. In-country sources point to barriers to relocation such as economic issues (the inability to rent a property alone because of lack of funds or lack of properties for single people) or difficulties in relocating children, along with the stigma and cultural attitudes mentioned above. This, in practice, means that many women cannot or will not relocate.
3.81 In-country sources told DFAT that escaping domestic violence is a push factor in external migration. DFAT assesses that women experiencing domestic violence have access to support services but cultural and structural problems such as poverty and inability to escape economic abuse create barriers to accessing those services. Single and divorced women
3.82 Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.
3.83 In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.
3.84 Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.
3.85 Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.
3.86 DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.
Findings

The applicant is a Catholic and the Tribunal accepts that she was raised a Catholic and remains a Catholic based on the documentation and evidence before the Tribunal. The applicant attends [a Catholic] church in [Suburb] and a letter from the parish was located on the applicant’s file. According to country information the applicant should be able to practice her religion without much hinderance. However, as the applicant was involved in a land dispute with the authorities this puts her in a different category, and she would now be known to them and could come to garner negative attention.
The applicant claims that the authorities confiscated her family’s land and her family received both physical and emotional threats from the authorities. The applicant claims that the government resumed the land and did not give them any compensation. Country information indicates that this is frequently the case in Vietnam as the government owns all the land. The applicant then had to find other work and her husband and her started doing [a job task]. However, her husband’s brother-in-law tried to make trouble as he operated a similar visit and she had rocks thrown at her house. The Tribunal accepts that the applicant was harassed by her husband’s brother-in-law and that she had been forced into this work, which was full of competition, due to the land resumption by the authorities.
The applicant is divorced from her first husband and is remarried. Her first husband and the father of the three additional applicants arrived with the applicant via boat in 2013. The applicant has detailed in length the abuse she suffered at the hands of her ex-husband and the Tribunal accepts that this occurred. It further accepts based on evidence and documentation provided that the applicant’s ex-husbands family has threatened her relatives in Vietnam. If the applicant was to be returned with her children, she would be alone and confronted by her ex-husband’s family. Country information above indicates that divorced women and women who have been abused struggle to relocate, to get employment and to subsist.
In the case of the applicant the Tribunal considers that the subjective fear that the applicant has for her future is objectively made out on the available country information. The Tribunal considers that cumulatively the applicant would face discrimination and hardship as a divorced woman with no support who is known to the authorities. The Tribunal therefore considers, based on the evidence before it that the applicant has a real chance of serious harm arising from her membership of a particular social group divorced abused women in Vietnam and from her religion as a Catholic.
The Tribunal finds that the applicant has a real chance pf serious harm on return to Vietnam as a divorced catholic woman. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
The Tribunal has gone on to consider whether the applicant has the ability to avail herself of state protection. The Tribunal notes that whilst considering the available evidence that some of the actors causing the harm is state actors and they could be said to have a real chance of seriously harming the applicant in the future. The Tribunal considers that the applicant could not avail herself of state protection.
The applicant would not be able to relocate anywhere in Vietnam to avoid the harm she fears in her home area. DFAT states the following:
Relocation may be difficult or impossible. In-country sources point to barriers to relocation such as economic issues (the inability to rent a property alone because of lack of funds or lack of properties for single people) or difficulties in relocating children, along with the stigma and cultural attitudes mentioned above. This, in practice, means that many women cannot or will not relocate.
The Tribunal finds that the applicant has a real chance of serious harm arising from her membership of a particular social group divorced abused women in Vietnam and for her religion as a Catholic. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
Conclusion
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
As the Tribunal has found the applicant to be a refugee and the secondary applicants as members of the same family unit there is no need to consider the alternative criteria in s36(2)(aa) of the Act.
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that applicants two, three, and four the primary applicant’s children are members of the same family unit as the first named applicant for the purposes of s 36(2)(c)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)        that the first named applicant in both file numbers 1905083 & 2207555 satisfies s 36(2)(a) of the Migration Act; and
(ii)       that the other applicants in both file numbers 1905083 & 2207555 satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Nora Lamont
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.
…

[2023] AATA 2583

6 July 2023

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction