1909322 (Refugee)

1909322 (Refugee) [2022] AATA 2505 (3 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Kate Khanh Hoang (MARN: 2015332)
CASE NUMBER:  1909322
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Paul Noonan
DATE:3 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 June 2022 at 5.03pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – level of political activities – unpaid debt – religion – Christian – Catholic – no claims of past harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 18 March 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 23 August 2018. The delegate refused to grant the visa on the basis that Australia does not have protection obligations to the applicant. The delegate was satisfied that the applicant’s country of nationality is Vietnam and the Tribunal is also so satisfied on the basis of the biodata with respect to his Vietnamese passport, a copy of which is retained on the Department systems and file, and accordingly has assessed his claims with respect to Vietnam as the country of reference or receiving country for the purposes of this appeal.
The applicant appeared before the Tribunal on 2 March 2022 to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by videoconference hearing. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal notes that the applicant is legally represented with respect to his application and the representative attended the Tribunal hearing by videoconference.
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.
Procedural history
[In] October 2013 the applicant arrived in Australia on a [Student Visa]. He subsequently applied for a Protection Visa (XA-866) on 23 August 2018.
In applying to the Tribunal for review of the delegate’s decision the applicant has supplied the Tribunal with a copy of the delegate’s decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has made the following pertinent disclosures with respect to his background and profile. He was born on [date]. He was born in Nghe An, Vietnam. He listed his religion as Catholic. He speaks, reads and writes Vietnamese and English. He is a de facto relationship which commenced in January 2017. He is not in contact with relatives outside of Australia. He departed Vietnam legally using his Vietnamese passport which expires [in] 2023. He did not list his past employment history. He listed his education level as completing high school in Vietnam.
In his written claims for protection the applicant made the following claims with respect to fearing persecution should he be required to return to the Vietnam as follows:
·He left Vietnam to study in Australia. While he has been in Australia he has been very outspoken about corrupt politicians and high ranked people in Vietnam. He has been threated with death if he returns to Vietnam.
·He did not experience harm in Vietnam in the past.
·He will not be able to access protection or move in Vietnam to avoid harm as these politicians and high ranked officers are very well connected and they will kill him wherever he goes and he will not be protected.
At the outset of the hearing the applicant’s representative set out that the applicant wishes to make a new claim with respect to his religion in addition to his claim to hear harm due to his political opinion. He also subsequently introduced claims during the hearing to fear harm due to owing a debt and due to the poor state of the Vietnamese economy making it difficult to get a job.
The Tribunal put to the applicant during the hearing under s424AA of the Act that he had told the Tribunal (differently constituted, Case Number 1704684, dated 28 April 2017 with respect to an invalid protection visa claim decision) that he had stated the following:
The applicant was invited by the Tribunal to comment on this information and the validity of his application for review. The applicant responded, saying that he had failed to show up to his interview which was at his previous address, and that he really needed the protection visa because it was impossible for him to live in Vietnam because of the standard of living, his family being in poverty, and him owing money to a loan shark which he borrowed for his student visa. He said that being able to remain in Australia for a few months would be life changing for him and stated he had not broken any laws or done anything against the Australian community.
The Tribunal set out to the applicant that if it relies on this information it may cause the Tribunal to doubt that he had ever undertaken Vietnamese focused political activism in Australia or that he is a Christian and as such this may be the reason or part of the reason for the Tribunal affirming the decision under review. This is because he did not mention political activism or religion as reasons for not wanting to return to Vietnam in 2017 despite being in Australia since 2013. The Tribunal set out that this may cause the Tribunal to doubt the credibility of his evidence as it may expect that if he had undertaken such political activism and been actively religious and feared harm as a result then he would have mentioned this to the Tribunal in April 2017.
The applicant chose to respond immediately and simply confirmed that he is now also making a claim about a debt. He did not seek to respond in writing to the information put to him nor did his representative.
The delegate noted that the applicant’s claims were very general in their nature and lacked expected details such as who he had spoken out against, what forums he had used, who his audience was, what he actually said, what his actual concerns are. The delegate did not accept that his profile with respect to his political opinion is of a level that he would attract any adverse attention from the Vietnamese authorities or anyone else. As such the delegate concluded that the applicant is not a refugee and also that he did not require complementary protection. For the following reasons the Tribunal has decided to affirm the delegate’s decision.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Political opinion
The Tribunal asked the applicant what political activities he had undertaken in Australia. He stated that he had not undertaken any activities but had talked to people about politics while at parties such as birthdays since at least 2014. He confirmed that he had not undertaken any other political activities. When asked what he had said he stated somewhat vaguely that he had told them about some things the government had done such as threatening people. When asked how he knows anyone in Vietnam would be adversely interested in him the applicant stated that someone told him that the police visited his family. When asked who told him he he stated his father told him the police visited and asked him what the applicant is doing in Australia. They did not tell his father why they were interested in him. This was in October 2017 (which the Tribunal notes is a date after the date of the previously constituted Tribunal decision put to the applicant under s424AA). The Tribunal put to the applicant that it appears implausible that the police would not set out to his father the reason for their visit. The applicant simply stated that it is dangerous to talk about the government.
The Tribunal discussed with the applicant that DFAT assesses that: It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.[2] The Tribunal put to the applicant that there is nothing to indicate he has any on-line profile as an activist or that he has organised any protests and that this may indicate he would not come to the adverse attention of the authorities. The applicant reiterated his claim that his parents had been approached by the authorities.
[2] DFAT Country Information Report, 11 January 2022, Vietnam, p.19
The Tribunal notes that the applicant has not been consistent in his reasons for not wanting to return to Vietnam. Further the Tribunal considers his evidence at this hearing, that he had merely had the occasional political discussion at parties in Australia, to be very unconvincing as a basis for finding he would have an adverse political profile with the Vietnamese authorities. He has not participated in any online activism or any formal organised protest activities. The Tribunal simply does not accept as reasonably plausible that the occasional political conversation at a party would lead to him having an adverse political profile and rejects the applicant’s claim as implausible that such claimed low level activity in a foreign country led to the Vietnamese authorities visiting his parents on a once off basis without telling them why they were interested in him.
On the basis of these considerations the Tribunal is satisfied that the applicant is of no adverse interest to the Vietnamese authorities for reason of his political opinion. The Tribunal is therefore satisfied that there is no real chance of serious harm to the applicant from the Vietnamese authorities or anyone else for reason of his political opinion, either now or in the reasonably foreseeable future, should he be required to return to Vietnam.
Debt
The Tribunal noted that the applicant had not raised this claim in his written claims for protection which may cause it to doubt that he owes or ever owed a debt. The applicant then simply stated that he did not know he could make this claim under a protection visa claim. The Tribunal noted that he knew enough to raise it as an issue before the previous Tribunal. He then confusingly stated he only understood this after talking to his representative. When asked how much he owes, the applicant stated it was a debt incurred for his study in Australia of about seven hundred million dong. He stated that he has not been paying the claimed debt off. He has not received any threats as he has been running away from his creditors. When asked if any family members had been approached by the creditor he said they had visited his parents and they had promised he would pay them back. This was in 2015. They have phoned his father again since then asking for the money.
The Tribunal is very concerned by the applicant’s inconsistent and varying claims as to why he fears persecution on return to Vietnam. In evidence to a previously constituted Tribunal he simply stated that he had left Vietnam to pursue better economic opportunities in Australia and that he needed to earn money for a few more months to pay back a debt to a loan shark for a loan and set himself up. The Tribunal notes that he has not received any threats with respect to money owing and that the claimed creditor has just asked his parents if he will be paying the money back in 2015. The applicant told the previous Tribunal that he just needed to stay for a few months to earn some money. The Tribunal considers that it is now several years later. The Tribunal considers that the applicant has therefore had ample opportunity to pay the debt off and, as there has been no recent threats or follow up by his claimed creditor, this has actually occurred. The Tribunal is satisfied that the applicant does not owe money to a loan shark in Vietnam. This is reinforced by his failure to make this claim out in his more recent written claim for protection to the presently constituted Tribunal. The Tribunal is therefore satisfied that there is no real chance of serious harm to the applicant from a loan shark or anyone else for reason of owning money, either now or in the reasonably foreseeable future, should he be required to return to Vietnam.
Religion
The Tribunal asked the applicant what Christian denomination he is? The applicant asked what the Tribunal meant. After explaining the meaning of denomination the applicant claimed he is a primarily a Christian and attends a church regularly. He stated the church is located in [Suburb 1]. When asked what street the church is on he stated [address], [Suburb 1]. When asked what the name of the church is he stated it is [name]. When asked if the church is Catholic, Uniting, Protestant or other the applicant stated it is Catholic. When asked why the applicant had not set out he was Catholic when asked what denomination he was the applicant stated that he though Christian means Catholic.

The Tribunal asked the applicant what he feared should he be required to return to Vietnam as a Catholic. He submitted that Christians in Vietnam can be threatened and their land taken in Vietnam.
The Tribunal put to the applicant considerations under s423A of the Act and asked him why he had not made this claim prior to the Tribunal hearing. The applicant submitted that he did not know this was the type of thing he could make a claim for protection about. The Tribunal set out that it might expect that if he genuinely feared harm for reason of his religion and left Vietnam for that reason that he would have made this claim in his written claims or mentioned it to the previously constituted Tribunal as set out in the s424AA information put to him. The applicant simply set out that Christians had experienced past land dispute problems with the authorities in the past.
The Tribunal set out that DFAT assesses that 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.[3] The Tribunal put to the applicant that this may indict there is no real chance of harm to the applicant for reason of his religion. The applicant stated that he might have been talking too much and there have been threats against his church in his area and they do not live freely with respect to religion.
[3] DFAT Country Information Report, 11 January 2022, Vietnam, p.15
With respect to the applicant’s religion the Tribunal has serious doubts as to whether the applicant is a Christian Catholic as his evidence as to his denomination was hesitant and it required significant prompting from the Tribunal before he identified he was actually Catholic rather than simply Christian. In addition, he made no claims of past harm and merely set out general examples of past land disputes between the church and the authorities in Vietnam. Even if the Tribunal was to accept the applicant is Catholic the country information reflects that a Catholic who is not politically active faces a low risk of official harassment. The Tribunal has found that the applicant does not have an adverse political profile and he has certainly not undertaken any political activities as a member of the Catholic Church either in Vietnam or in Australia.
After carefully considering the country information with respect to the Catholic Church in Vietnam and the applicant’s history and profile the Tribunal is satisfied that there is not a real chance that the applicant will suffer serious harm from the Vietnamese authorities or anyone else for reason of his religion either now or in the reasonably foreseeable future should he be required to return to Vietnam.
The Economy
The applicant confirmed that he now also wished to make a claim with respect to the poor state of the Vietnamese economy and the associated difficulty in finding a job. The Tribunal discussed that harm for this reason is generally considered to be not a harm intentionally inflicted for a refugee reason and the applicant was unable to identify why he would be intentionally targeted for persecution for reasons of the poor state of the economy.
Complementary protection
The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has 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 he will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to Vietnam. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that the applicant will suffer significant harm for reason of his political opinion, his religion, or owing money to a loan shark or anyone else.
The applicant also raised that it may be difficult for him to obtain a job in Vietnam due to the poor state of the economy. The Tribunal asked the applicant if there is any reason that he could identify that he would be intentionally denied a job or the right to subsist or earn a living. The applicant simply stated it would be difficult due to the economy. The Tribunal notes that s 36(2B) states that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the real risk is one faced by the population generally and is not faced by him personally. The Tribunal finds that the applicant’s stated claim about the poor state of the economy falls within the exception at s 36(2B).
Overall conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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 2505

3 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice