1909418 (Refugee)

[2023] AATA 4855

1909418 (Refugee) [2023] AATA 4855 (20 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Kerry Murphy (MARN: 9370985)

CASE NUMBER:  1909418

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Roslyn Smidt

DATE:20 December 2023

PLACE OF DECISION:  Sydney

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)(b)(i) on the basis of membership of the same family unit as the first named applicant.

Statement made on 20 December 2023 at 12:36 PM

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – opposition to the government – protests – illegal departure – fear of detention – physical assault – political activities in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 June 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who are citizens of Vietnam, applied for the visas on 20 September 2016. The delegate refused to grant the visas on the basis that the delegate found some of [the applicant] lacked credibility and his fears were not well-founded.

3. The applicants appeared before the Tribunal on 29 March 2023 and 29 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    BACKGROUND

11. [The applicant] [applicant A] is [an age] year old married man of Catholic religion from Quynh Luu, Nghệ An Province in Vietnam. Quỳnh Lưu is a rural district of Nghệ An province, in the North Central Coast region of Vietnam. He attended school until the age of about [age]. After leaving school he worked as a fisherman in a family business.  He also worked on  his mother’s market stall. His father his deceased. His mother and [specified family members] remain in Vietnam.

12. [Name] [applicant B] is applicant A’s wife. She completed school in [specified year] and worked in a food stall between [specified years]. Her parents remain in Vietnam. Her [specified family members] are in Australia and her sister resides in [Country 1].

13. Applicant A and B have two [children] who were born in Vietnam [[Applicant C] born in [year] and  [Applicant D] born in [year]. They also have [another child] [Applicant E] who was born in Australia in [year].

14. The applicants and their two older children left Vietnam by boat from [Location 1] [in] March 2013 and arrived in Australia [in] April 2013.

    SUMMARY OF MIGRATION HISTORY

15. The applicants and their two older children left Vietnam by boat from [Location 1] [in] March 2013 and arrived in Australia [in] April 2013. Due to the manner of their arrival they were unable to  ability to seek and obtain protect

16. On 17 August 2016 they were invited to apply for temporary protection.

17. On 20 September 2016 they lodged an application for a Safe Haven Enterprise (subclass 790) visa. They did not have professional representation at that time but appear to have had the assistance of relatives living in Australia.

18. On 12 July 2018 the decision was referred to the IAA.  Due to legal developments following that referral the IAA reached the conclusion that it did not have jurisdiction to conduct the review.

19. In December 2018 the applicant appointed Mr Murphy as their representative.

20. On 29 March 2019 the applicants were renotified of the refusal of the application lodged on 20 September 2016 and advised that they could seek review of that decision by this Tribunal.

21. On 19 April 2019 the applicants applied for review of the delegate’s decision

    On 15 October 2020 they lodged a second SHEV application

    On 15 June 2021 they were interviewed in relation to that application

    On 5 August 2021 their application was refused.

    On 19 August 2021 they applied for review of the delegate’s decision.

    On 29 March 2023 they attended a hearing of the Tribunal to discuss both applications. Following the hearing the Tribunal was told that there were issues regarding the validity of the second application. Finalisation of the case was delayed awaiting further advice on this issue.

    On 27 July 2023 a second hearing was held, mainly to advise the applicant of that the second application appeared to be invalid. 

    On 29 September 2023 I held a video and telephone hearing to take evidence from [Leader A].

    SUMMARY OF CLAIMS

22. Applicant A claims that he is a risk of harm in Vietnam because of his Catholic religion and political opinions or political opinions which could be imputed to him because of his involvement in events which took place at or near a Catholic church in 2012, because of his association with [Leader A], his [Relative A] who worked for [Leader A], because of his illegal departure from Australia and because of his involvement in political activities in Australia.

23. Applicant B claims to be at risk of harm in Vietnam because of her Catholic religion, her involvement in anti-Vietnamese government protests in Australia, her association with applicant B and [his Relative A] and her illegal departure from Vietnam.

24. The applicants claim that their children will also be at risk of harm because of their Catholic religion, their participation in protests in Australia and their association with their parents.

    CLAIMS RELATED TO CATHOLIC RELIGION

25. According to DFAT[1], Catholics make up some six percent of the population of Vietnam, are generally free to practice their faith and do not face significant discrimination or harassment merely because they are Catholics. However, Catholics in some more remote areas have experienced harassment from time to time and Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism may official discrimination from authorities or their proxies, which may include arrest or violence.

    [1] Country Information Report on Vietnam dated 11 January 2022

26. In their initial application, applicants A and B claimed that they had faced harassment and discrimination and other problems in Vietnam because of their Catholic religion. However, these claims were largely withdrawn later in the process.

27. Applicant A also claims that he would be at risk of harm because of his involvement in events which took place at or near a Catholic church in [District 1] in 2012. 

28. [District 1][2] is a rural district of Nghệ An province in the North Central Coast region of Vietnam. Local people in [District 1] built a chapel on ground donated to the church by a local Catholic in about 2010. Attempts to have the chapel registered as required by Vietnamese law were unsuccessful and local authorities and others engaged in a campaign of harassment to prevent local Catholics worshiping at the site. The most violent incidents occurred in June and July 2012 when local parishioners were attacked by local officials and members of [Group 1], a militant pro-Government movement allegedly under the direction of local governments which engaged in protests outside Catholic churches in some areas.

    [2] See for example [Sources deleted.]

29. Applicant A claims that he was involved in candle lighting events in support of Catholics in [District 1], that he travelled to [District 1] to provide support or assistance and that as a result he was summoned by the police and this caused him to flee the country. I found much of his evidence regarding his involvement in these events inconsistent and implausible. While I accept that he participated in candle lighting ceremonies in support of the people in [District 1] in his local area, I do not accept that he travelled to [District 1] or that he was of interest to the police or anyone else because of his involvement in these events at the time he left [District 1].  

30. After considering all of the relevant evidence, I am not satisfied that any of the applicants would be unable to practice their faith on return to Vietnam or that they would face serious or significant harm for any other reasons because of their Catholic religion if they returned to Vietnam.

    CLAIMS RELATING TO POLITICAL OPINION

31. Applicant A claims, and I accept, that he supports democracy and opposes the communist government in Vietnam. Apart from participating in activities such as the candle lighting ceremonies in 2012, but he was afraid to participate in other political protests or events prior to leaving Vietnam because he was aware of friends who had been assaulted and beaten by the authorities. After arriving in Australia, he learned more about democracy and from 2018 he began to join other Catholic in protests against the Vietnamese government, including protests relating to human rights and environmental issues. He has also participated in fundraising events. Photographs of him and his family participating in these events have been posted on [social media]. Some show him with the flag of the former government of South Vietnam. While he was unable to attend public gatherings during the Covid period his views did not change and he began to attend public events in later 2022. In support of these claims, he has provided letters from [specified community agencies].

32. It has been claimed that applicant A would be at risk of harm because of his association with [Leader A]. [Leader A] was a visiting priest at [District 1] and was present during the violent incidents of 2012.  During that time, he visited [Parish A] to participate in local events and collect charitable donations for his local parish, which was in a poor area. Applicant A assisted him with this work and they have remained in contact while applicant A has lived in Australia. [Leader A] attended the hearing by video and telephone link from Vietnam and confirmed these details. He said that in his opinion applicant A would be at risk of detention on return to Vietnam because of his political views. He mentioned the case of [Mr A] who left Vietnam illegally with the applicant A, but later returned. He was placed under strict surveillance and later arrested and sentenced to two years imprisonment.

33.      According to reports[3] [Leader A] is a well-known, outspoken  grassroots activist. He was a priest in [Parish 2] which includes [District 1] and he present at when some of the violence occurred in mid-2012. In 2013 he requested permission to attend the trial of [Christians] who were accused of national security crimes. His request was refused, but the authorities blamed him for disrupting public order surrounding the events. He became a parish priest in [Parish A] in 2014 and was at the forefront of a [specified] protest. In February 2017 [Leader A] led a large protest in support of a formal complaint by the people from [District 2]. The protest was attacked by police and some local residents were arrested. In the following months parishioners in [Parish 3] were repeatedly assaults by local thugs. [Leader A] has never been detained, but he is frequently attacked by state media. He has been banned from travelling and moved to different more remote parishes in what appears to be an attempt to silence him.

1. I have concerns regarding [Leader A’s] recollection of some events relating to applicant A’s activities in 2012. However, I accept that he has known applicant A since at least 2012 when applicant A helped him with his charity work and that he has some knowledge of applicant A’s involvement in events in Australia.

2. It has also claimed that applicant A would be at risk of harm if he returns to Vietnam because he left the country illegally.  

   Country information

3. The following information is intended to provide a context for assessing applicant A’s claims.

4. The following extracts have been taken from DFAT’s Country Information Report of 11 January 2022

5. Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. That said, street protests and online protests continue. Many relate to single-issues and threats to livelihood and land rights, often related to accusations about corruption in development. A recent example is the widespread anti-China protests related to fears that the Chinese Government would buy land under reformed rules and against laws that required social media companies like Google and Facebook to store user data domestically.

6. The extent to which protests are tolerated depends on the topic and local government priorities at the time. Protests relating calls for democracy and human rights and freedom of expression are not tolerated. There is sometimes more tolerance relating to issues, such as environmental issues, land use protests and digital rights, but this can change at any time.

7. 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. People who engage in organised activities seen as threats to the government are likely to be closely monitored and face restrictions on their movement. Some are arrested, charged and jailed. 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 than ordinary participants, but the possibility of a low-level activist being arrested cannot be discounted.

8. It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against  different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination.  A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.

9. DFAT is aware of reports by activists of assault being used to extract confessions and of poor prison conditions that may amount to torture. According to the 2020 US Department of State Human Rights Report, techniques include beatings (including by other prisoners), use of electric shocks, cigarette burns and waterboarding and methods that do not leave physical marks. These methods were alleged in relation to the Dong Tam protests.

43.   In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. The interview process generally takes between one to two hours and focuses on obtaining information about their involvement in the illegal movement. Some have been detained for multiple days or recalled for further questioning. It appears that those who used the services of people smugglers to leave at worst face an administrative fine.

1. An article in The Diplomat on 28 June 2019[4] observes that repression of political dissent has risen in Vietnam in recent years. It cites reports which state that there were between 128 and 263 political prisoners or prisoners of conscious in Vietnam at that time and reports on trends such as using local thugs to attack protestors. It observes that there are differing views on the reasons for this. Some observers believe it is the result of an increased number of critics of the government who are increasingly outspoken, others have noted the role of social media. Some suggest that it could be linked to the Communist Party’s concern about how its role is viewed. Some suggest that it could be the result of a power struggle between different departments within the Vietnamese government or a change in leadership in 2016. The article suggests that all of these factors are involved. The author suggests that reasons could include attitudes of particular officials, for example those who want to progress their careers by acting aggressively. The article notes that while some well-known figures such as those with ties to banned groups such as the Brotherhood of Democracy have been targeted, many of the loudest critics of the Party remain unmolested or are allowed to leave, while some activists who have done no more than post a few messages on Facebook have been jailed for several years.

   [4] David Hutt, Why is Repression rising in Vietnam, The Diplomat 28 June 2019 [provided by the applicant]

1. According to the US Department of State Country Report on Human Rights Practices for 2022 there were credible reports of significant human rights issues in Vietnam including torture and cruel, inhuman, or degrading treatment by government agents; arbitrary arrest and detention; political prisoners; serious restrictions on free expression and media, including arbitrary arrest and prosecution of government critics. Reports by media, NGOs, and observers, authorities held at least 173 persons for political or human rights activism, including 143 convicts and 24 under pretrial detention. Detainees were held for exercising internationally recognized human rights, such as the freedoms of expression, peaceful assembly, and association.  Most of these arrests and convictions were linked to online blogging, and defendants were charged with “making, storing, spreading, or propagating information, materials, or items” for the purpose of “opposing” the state and “abusing democratic freedom.”

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Applicant A

2. As noted above, applicant A fears harm because of his religion, his illegal departure, his involvement in political activities in Australia and his association with [Leader A]. In my view, considered individually none of these issues would be sufficient for me to conclude that he faces a real chance of experiencing serious or significant harm if he returns to Vietnam. As discussed above, Catholics are not generally at risk of harm because of their religion and his involvement in the candle lighting activities occurred over ten years ago. While his activities in Australia are not insignificant, he has not joined any political groups and he did not play a leading role in the activities described and it is unlikely that this alone means he would be of significant interest to the authorities in Vietnam. Similarly, merely being associated with [Leader A] in the past seems unlikely to be of interest to the authorities if he returns to Vietnam. Finally, as discussed above, those who depart illegally do not generally face significant problems because of this.

3. Even if I consider these matters cumulatively, I find it unlikely that applicant A could suffer serious or significant harm on return to Vietnam. However, as noted above, some of those detained have had limited involvement in these activities. It is possible applicant A’s involvement in candle lighting ceremonies in 2012 and his association with [Leader A] may have brought him to the adverse attention of the authorities in the past and this in combination with his involvement in activities in Australia could possibility cause him to be viewed as a someone with a significant record of anti-government activity. The fact that he left illegally and would be questioned on return may increase the risk that he would come to the adverse attention of the authorities as a result of these activities. I also note that he come from the [Parish A] area where there were widespread protests in recent years which could also cause him to be viewed with suspicion on return to Vietnam. Finally, I note the evidence which suggests the situation for those who criticise the government appears to have deteriorated in recent years.

4. In these circumstance, I cannot discount the possibility that he may be arrested or detained at some time in the reasonably foreseeable future due to his anti-government views. I am therefore satisfied that there is a real chance that he would face serious or significant harm on return to Vietnam because of his political opinion.

   Applicant B and the children

5. It has been claimed that applicant B would be at risk of harm because of her religion, her illegal departure and her the involvement in political activities in Australia. However, for the reasons set out above, I do not accept that she would be at risk of harm because of her religion or her illegal departure and her involvement in political activities in Australia has been more limited than applicant A and I am not satisfied that she faces real chance of suffering serious or significant harm for any reason if she returns to Vietnam. With regard to the children, they are very young and I am unaware of any evidence which suggests that they would be at risk of harm on return to Vietnam for any reason.

   CONCLUSIONS

6. 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).

7. 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 the first named applicant’s wife and their minor children are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(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)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

8. 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 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   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.

   …

   
   

[3] [Sources deleted.]