1907870 (Refugee)

1907870 (Refugee) [2022] AATA 2870 (27 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Jack Ta
CASE NUMBER: 1907870

COUNTRY OF REFERENCE: Vietnam
MEMBER:Katherine Harvey
DATE:27 July 2022
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 July 2022 at 11:37am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – divorced woman – single mother – caring for an Australian child – domestic violence claims in Australia – medical conditions – best interests of the child – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 4, 5(1), 5AAA, 5H, 5J – 5LA, 29, 36, 65, 411, 417, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 8 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant claims to be citizen of Vietnam and applied for a protection visa on 12 July 2018. After the birth of her child, the second named applicant, on [date], the first applicant added the child as a member of her family unit to her protection visa application on [date].
The delegate refused to grant the visas on the basis that the delegate was not satisfied that there was a real chance that the first named applicant would suffer persecution for reasons relating to her status as a single mother, nor was there a real risk that she would face significant harm as a necessary and foreseeable consequence of removal from Australia to Vietnam.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The first named applicant arrived in Australia in November 2012 on a prospective marriage visa. She and her then fiancé were married in January 2013 in Australia and the applicant applied for a partner visa that was granted in February 2013.
The first named applicant was refused a permanent partner visa in February 2016 and the Tribunal affirmed that decision in January 2017.
In February 2017, the first named applicant applied for a medical treatment visa that was refused because she did not hold a substantive temporary visa at the time of application. The Tribunal affirmed that decision in December 2017.
The applicant began a relationship with an Australian resident in June 2017. She claims that he became violent towards her and kicked her out of their house in November 2017. She discovered that she was pregnant with their child in December 2017 after her previous partner had travelled to Vietnam to marry someone else.
The applicant applied for a protection visa on 12 July 2018. The second named applicant was born on [date] and was added to the protection visa application on [date].
On 8 March 2019, the delegate refused to grant the protection visas.
An application for review of the delegate’s decision was lodged with the Tribunal on 2 April 2019.
The first named applicant’s claims
The first named applicant applied for a protection visa claiming:
·she came to Australia on a prospective marriage visa and married. After some time, the relationship broke down and her husband left.
·in 2017, she became pregnant to a new partner but unfortunately lost the child in October 2017 because the child was diagnosed [with medical condition]. At the same time, she received news that her mother in Vietnam had died. At the end of November 2017, her partner started being violent towards her and kicked her out of the house.
·in December 2017, her former partner returned to Vietnam and married, and the first named applicant found out that she was pregnant with his child.
·at eight months pregnant, she applied for a protection visa so that she could stay in Australia to care for her child as she had no relatives remaining in Vietnam on whom she could rely, as her biological father had moved to [Country 1] and her stepfather now lived with his mother. She would be a single mother bringing up her son alone and she had nowhere to go.
·it would be a ‘very hard struggle’ to go back to Vietnam because ‘there has been a lot of protest regarding the lease of my country to China’.
·that she has a speech problem and she claims that in the past men had tried to abuse her by teasing her and touching her inappropriately. She claims she is concerned that the same people still live in the neighbourhood and, as a single mother, ‘the chances will be much higher for the dirty men to say harrassing (sic) things’.
·the authorities would not protect her as they only come and warn people and they cannot protect people in the same way that people can be protected under Australian law.
On 23 June 2022, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the first named applicant to give oral evidence and present arguments at a hearing on 7 July 2022 and to provide any supporting evidence by 30 June 2022.
On 29 June 2022, the first named applicant advised the Tribunal of a change in migration agent and asked that hearing entitlements be waived and the Tribunal affirm the application under review. The first named applicant also asked that this matter be referred to the Minister given her circumstances.
This matter has therefore been determined on the evidence available to the Tribunal.
On 1 July 2022, a copy of the first named applicant’s medical report and copies of the second named applicant’s birth certificate and citizenship certificate were provided to the Tribunal.
FINDINGS AND REASONS
The first named applicant
Notwithstanding the first named applicant’s request that the Tribunal affirm the decision under review, the Tribunal is required to and has considered the review application against the criteria for the protection visa.
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application, the email dated 29 June 2022 and the material provided on 1 July 2022 in response to the Tribunal’s invitation to provide supporting evidence. As noted above, the only additional information provided relating to the first named applicant that is not in the Department’s file was a copy of a medical report about her current medical conditions. The first named applicant chose not to accept the Tribunal’s invitation to attend a hearing to give evidence and present arguments.
The first named applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
The Tribunal conducted a review ‘de novo’ and has considered and made its own assessment of whether the first named applicant meets the criteria for the grant of a protection visa. As such, the Tribunal has not relied on the delegate’s decision in reaching its decision.
Based on the copy of her passport on the Department’s file, the Tribunal finds that the applicant is a national of Vietnam and assesses her protection claims accordingly.
There is no evidence that the applicant has the right to enter and reside in a country other than her country of citizenship. The Tribunal finds s 36(3) of the Act does not apply to her.
The applicant was in Australia at the time of this decision.
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant or applicants to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicants’ case for them. It is the responsibility of the applicants to specify all particulars of the claim to be people in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Risk of harm as a single woman
The Tribunal finds that the applicant is a single woman, whether because she is separated from her husband or because their marriage has been legally terminated. Based on the information before it, there is insufficient information for the Tribunal to make a finding on whether or not the first named applicant experienced domestic violence in Australia.
The DFAT Country Information Report Vietnam provides the following information on women, including single and divorced women:
Women
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.
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-19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.
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.
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.[1] …
Single and divorced women
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.
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.
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.
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.
DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.[2]
[1] DFAT Country Information Report Vietnam, 11 January 2022, p 21.
[2] DFAT Country Information Report Vietnam, 11 January 2022, p 23.
The above country information indicates that while discrimination against women is banned by the Vietnamese Constitution, women have fewer economic, employment and educational resources than men. The country information also indicates that domestic violence is common in Vietnam, with a government survey in 2020 finding ‘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] DFAT assesses that single women and divorcees face a moderate risk of societal discrimination but they do not face official discrimination.
[3] DFAT Country Information Report Vietnam, 11 January 2022, p 22.
The Tribunal considered whether the first named applicant would suffer serious harm as a single woman or a single mother, whether as a divorced or separated woman, whether or not she had previously experience domestic violence, and whether or not she had previously been subject to inappropriate behaviour. The first named applicant claims to have experienced physical and verbal harassment in 2014 (when she was a single woman) and she claims to be concerned that she would experience verbal harassment if she returned to Vietnam as a single woman. Based on the country information and the DFAT assessment that single women and divorcees face a moderate risk of societal discrimination, the Tribunal finds that there is a real chance that, as a single woman in Vietnam, the first named applicant would face moderate societal discrimination that may well include verbal harassment. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. The Tribunal considered whether moderate societal discrimination amounted to serious harm and considered the information before it against the six instances of serious harm detailed in s 5J(5). Based on the information before it, the Tribunal finds that the moderate societal discrimination that there is a real change the first named applicant would experience would not involve a threat to her life or liberty, nor significant physical harassment or ill-treatment, nor significant economic hardship, the denial of basic services or the denial of capacity to earn a livelihood affecting her capacity to subsist. On the information before it, the Tribunal is not satisfied, considering her claims individually and cumulatively, that the first named applicant would experience serious harm.

The Tribunal then considered the first named applicant’s claims against the s 36(2)(aa) complementary protection criteria and whether there were substantial grounds for believing that as a necessary and foreseeable consequence of removal to a receiving country there is a real risk the non-citizen will suffer significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. There is no evidence before the Tribunal to suggest that the feared verbal harassment would be done intentionally to inflict cruel or inhuman treatment or punishment, nor that it would be intended to cause extreme humiliation which is unreasonable. On the information before it, the Tribunal finds that there is a real risk that the first named applicant will experience societal discrimination but for the reasons above, the applicant will not suffer significant harm.
Medical conditions
The DFAT Country Information Report Vietnam provides the following information on health in Vietnam:
According to United Nations Development Programme data, life expectancy is 75.4 years (men 71.3 years, women 79.5 years) and health expenditure is 5.5 per cent of GDP (for context: combined men and women’s life expectancy in Australia is 83.4 years and health spending is 9.2 per cent of GDP in Australia). Economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese.
Hospitals are organised at the ‘central’ (national), provincial and district levels, along with private hospitals that are found in urban areas. Healthcare in rural communities is provided at commune-level health centres. These centres provide basic preventative care, diagnoses and treatments, and refer people on to hospitals. Quality varies from place to place, and some centres are poorly funded and ill-equipped. Distance for people living in remote areas can be a barrier to access. Health centres are usually staffed by nurses and midwives, while some may have doctors. Hospitals are the primary place of care (rather than, for example, a general practitioner’s practice) for many Vietnamese. See also Internal Relocation for information on how place of residence and household registration can affect access to healthcare.
The vast majority of the population is enrolled in the social health insurance scheme. The poor, ethnic minorities and elderly are fully subsidised, while others pay premiums. Healthcare is not free; a co-payment is required from patients, potentially along with bribes due to corruption. The co-payment is higher in central and provincial-level hospitals, but the level of care there is also higher. This may encourage those who can afford it to bypass lower-level hospitals to receive treatment.[4]
[4] DFAT Country Information Report Vietnam, 11 January 2022, p 9.
The Tribunal has considered whether the first named applicant would suffer serious harm as a result of her asymptomatic Hepatitis B but was unable to locate any information that people in this group would suffer serious or significant harm in Vietnam. The Tribunal has considered whether the first named applicant would suffer serious harm as a result of her other known medical conditions listed above and her claimed speech impediment. Considering all of the first named applicant’s health claims individually and cumulatively, the Tribunal is not satisfied, on the information before it, that there is a real chance that the first named applicant would suffer serious harm as a result of her health conditions in Vietnam.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). For the same reasons that the Tribunal is not satisfied that there is a real chance that the first named applicant would suffer serious harm as a result of her health conditions in Vietnam, the Tribunal is not satisfied that there is a real risk that the first named applicant would suffer significant harm as a result of her health conditions in Vietnam.
Considering all of the first named applicant’s health claims individually and cumulatively together with the moderate societal discrimination that the Tribunal finds she would experience as a single woman or single mother, the Tribunal is not satisfied, on the information before it, that there is a real chance that the first named applicant would suffer serious harm in Vietnam. For the same reasons, the Tribunal is not satisfied that there is a real risk that the first named applicant would suffer significant harm in Vietnam as a result of moderate societal discrimination together with the first named applicant’s health conditions.
Other claims
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
There was no information before the Tribunal connecting the first named applicant with any protests or other actions related to leasing land to China. The Tribunal is not satisfied, on the evidence before it, that there is a real chance that the first named applicant would suffer serious harm and, for the same reasons, the Tribunal is not satisfied that there is a real risk that the first named applicant would suffer significant harm in Vietnam.
Referral to the Department
The first named applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act that gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The first named applicant submits that she has [an age]-year-old son who is an Australian citizen who is reliant upon her care and support. She claims that her son has been ignored by his father since birth and that she is his sole carer. The applicant wishes her child to have full access to all the benefits that an Australian child shall be granted and protected when he lives in Australia. The applicant cites Australia’s obligations under the Convention on the Rights of the Child, including the best interests of the child, and Australia’s obligations under the International Convention on Civil and Political Rights, particularly issues of family unity, to support her request.
The Tribunal has considered the first named applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ and will refer the matter to the Department.
The second named applicant
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). The issue regarding the second named applicant is whether he is now an Australian citizen.
Deoxyribonucleic acid (DNA) testing was undertaken [in] September 2020 to determine the parentage of the second named applicant. It was determined that there was a 99.99 per cent chance that the Australian resident with whom the first named applicant was in a relationship from June to December 2017 was the father of the second named applicant.
On 1 July 2022, the Tribunal was provided with a copy of the second named applicant’s Australian Citizenship certificate, which states that his citizenship was acquired on [date], the date of his birth.
The Tribunal is satisfied on the evidence before it that the applicant is an Australian citizen. It follows that the applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the first named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Considering all of the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are grounds for believing that there is a real risk the first named applicant will face significant harm if she returns to Vietnam. 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 first named 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 first named applicant does not satisfy the criteria in s 36(2).
For the reasons given above, as an Australian citizen the second named applicant cannot be granted a protection visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Katherine Harvey
Senior 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.
…

[2022] AATA 2870

27 July 2022

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