2004157 (Refugee) - [2022] AATA 4214

2004157 (Refugee) [2022] AATA 4214 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004157
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Sheridan Lee
DATE:12 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 October 2022 at 1:03pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion and religion – member of anti-government activist group – not personally religious but protested for religious freedom – family’s disagreement with local government over acquisition of land – detained, questioned, warned, banned from school and prevented from finding work – vague, inconsistent and unconvincing claims and evidence – elapse of time – delay in applying for protection – returns after studying in third country and twice from Australia – student visa refused and period as unlawful non-citizen – two Australian-born children not included in application and best interests do not apply – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AZAEH v MIBP [2015] FCA 414
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAKQ v MIBP [2016] FCCA 1186
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLPN v MIAC [2010] FCA 202
SZLVZ v MIAC [2008] FCA 1816
SZNRZ v MIAC [2010] FCA 107
SZQMB v MIAC [2012] FMCA 24
SZRGE v MIAC [2013] FMCA 18
Zhang v RRT [1997] FCA 423
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 26 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old woman from Hải Phòng, Vietnam. The applicant completed high school in Vietnam in 2005. At the hearing she gave evidence that prior to travelling to Australia, she lived in [Country] for three years, where she studied [Subject]. She returned to Vietnam before travelling to Australia. The applicant first arrived in Australia [in] April 2014 on a Subclass 573 Higher Education Sector visa. At the Tribunal hearing, the applicant advised that she never completed a higher education course in Australia, only an English language course.
The applicant is not religious. She speaks, reads and writes Vietnamese and some English.
The applicant departed Australia and returned to Vietnam [in] October 2015, when her mother passed away. On 30 August 2017, the applicant’s student visa ceased. She applied for a further student visa (Subclass 500) on 27 September 2017, and she was granted the associated bridging visa on 3 October 2017. The student visa application was refused on 28 November 2017.
The applicant’s bridging visa ceased 35 days after the student visa was refused, on 2 January 2018. She remained in Australia unlawfully until she applied for a protection visa on 4 December 2018, claiming that she would be persecuted in Vietnam for opposing the Government.
The applicant works in Melbourne providing [services] to [specified people]. She has two young children that were born in Australian in [year range]. They attend school in Melbourne. The children and their father, [Mr A], are also Vietnamese citizens. The applicant confirmed that her children are not included in the current visa application. She said that her eldest was included in [Mr A]’s visa application, but she was unsure of the outcome. The applicant explained that she and [Mr A] are no longer in a relationship, but he provides support for her and the children.
The applicant supplied the Department of Home Affairs with a copy of her passport, issued by the Socialist Republic of Vietnam. I accept that the applicant is a citizen of the Socialist Republic of Vietnam and will assess the applicant’s claims against Vietnam as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
Claims and evidence
Application for protection
The application for protection form outlines that:
·The Communist party of Vietnam is the only political party in the country. The regime is corrupt and controlling. The applicant objected to the party’s policies.
·The applicant was warned, questioned, banned from school, prevented from finding work and prevented from contacting other anti-government group members. Her family were also threatened, and they all became stressed.
·The applicant would be at risk of being detained by authorities in Vietnam because she is a member of an anti-government propaganda group.
·She was often opposed to the party policies on [Social media], which is strongly controlled. The applicant would be at risk of court proceedings and jail time as a result of her online activity.
·The applicant could be subjected to financial demands because of corruption.
·All parts of Vietnam are strictly controlled, and movement can be restricted.
The applicant was not invited to participate in an interview with the delegate of the Minister for Immigration. The delegate did not accept that the applicant was a high-profile political activist or that she was of interest to Vietnamese authorities. On 26 February 2020, the delegate found that the applicant would not face a real chance or risk of serious or significant harm in Vietnam.
Application for merits review
The applicant applied to the Tribunal for merits review of the decision to refuse her protection visa application. A copy of the delegate’s decision was provided to the Tribunal with the application for review.
On 13 October 2021, the Tribunal wrote to the applicant informing her that a hearing was likely to proceed via video using Microsoft Teams. The letter asked the applicant to respond within seven days if she had any concerns about the hearing proceeding in this manner. The Tribunal did not receive a response.
The applicant was then invited to appear before the Tribunal by video using Microsoft Teams on 1 December 2021 at 2:00pm. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the review applicant an option to join the hearing by audio only by calling with a unique conference ID specified in the hearing invitation.
The applicant did not appear before the Tribunal on the day and at the scheduled time. There was no evidence that the applicant attempted to call the Tribunal. As such, I decided to dismiss the application.
The applicant made contact with the Tribunal on 8 December 2021 to request reinstatement. The request stated that the applicant did not understand that she was required to click the link to attend or phone the number provided. Instead, she waited for a call. I note that English is not the applicant’s first language and no calls were made to the applicant at the time of the hearing when she did not join the video via the link. In the circumstances, I decided to reinstate the application.
The applicant appeared before the Tribunal via video on 10 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
In addition to the claims in respect of her political activism, at the hearing the applicant alleged that there is an ongoing disagreement between her family and the local government in her home area. The applicant gave evidence that when her grandfather passed away, he left a block of land in the [named] Commune. The Government wished to acquire the land for a development and made an unreasonable offer. The applicant’s father was coerced to hand over the land and there is a disagreement between the family and the local government as a result. The applicant claimed that the conflict became physical in 2010.
The applicant’s remaining oral evidence will be discussed below where relevant.
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, I have 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.
ANALYSIS AND FINDINGS
For the reasons below, I do not accept that the applicant was arrested or detained by the police in Vietnam for participating in protests in support of religious freedom. I do not accept that her family has an ongoing dispute with the local authorities or that her father was physically assaulted by a member of the local authorities in relation to a property dispute. I do not accept that there are any individuals, groups or government authorities that would seek to locate or harm the applicant on her return to Vietnam.
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims they made. This may involve an assessment of the applicant's credibility. In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[1] However, as outlined in The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status:
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.[2]
[1] SZLVZ v MIAC [2008] FCA 1816 at [25].
[2] Geneva, 2019, para 204.
I further note that the Australia courts have not endorsed a free standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law.[3] In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision-maker to be ‘satisfied’ of the matters set forth in s 65 of the Act.[4]
[3] See SZNRZ v MIAC [2010] FCA 107 at [19]–[21]; SZLPN v MIAC [2010] FCA 202 at [16]–[17]; MZAKQ v MIBP [2016] FCCA 1186 at [50]–[61]; SZRGE v MIAC [2013] FMCA 18 at [52]–[60]; SZQMB v MIAC [2012] FMCA 24 at [48]–[51].
[4] See SZNRZ v MIAC [2010] FCA 107 at [20].
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
At the Tribunal hearing, the applicant elaborated on the claims put forward in her application for protection. The applicant gave evidence that although she is not personally religious, she was involved in political protests to promote religious freedom in Vietnam. She expressed fear that the Vietnamese Government would have a record of her involvement. The applicant explained that the Vietnamese Government supresses political activism and it would be difficult for her to start afresh.
The applicant said she attended protests five or six times. She could not recall the times, dates or who organised the protests. She explained that the protests would occur impromptu at the church near where she attended English tutoring in [Hải] Phòng. The applicant described the area as predominantly catholic. Her tutor was a priest at the church.
In 2003 or 2004, the applicant was allegedly arrested and detained for one night in a building described as a community hall that was used by officials dealing with security. She said she was arrested three times, but she was only detained overnight on one occasion and she was never charged with an offence. The applicant said she had no record of the arrests. When I asked the applicant about her role in the protests, she said that when the government sent people to stop the protests, she tried to stop them from destroying property.
I raised my concern with the applicant about the lack of detail she was able to provide in respect of her claims to have participated in protests and to have been arrested. In response, she explained that she was still young at that time and didn’t keep any records. I asked the applicant why she felt she would still experience issues in Vietnam after 18 years had passed. The applicant said she had issues obtaining documents when she arranged travel to [Country] and Australia. When she arrived in Australia, she was able to compare life in Vietnam to life here. She commented that processes are more transparent, and it is fairer in Australia.
The applicant was not stopped or questioned when departing Vietnam. However, she said she had trouble getting all the necessary documents and had to give people money under the table. She went on to explain that she had to do this when she requested her criminal record and a new copy of her birth certificate, which she requested because she lost the original. The applicant claimed to have placed one to two million Dong (approximately $66 to $132 AUD) in the applications. The applicant alleged that her criminal record should not have been clear, but because she gave the official money it was. The applicant raised no issue in respect of her ability to secure a passport once she had the necessary documentation.
I asked the applicant to tell me about her online activity. She was unsure what I was referring to, so I reframed the question. The applicant was still unsure, so I read her a section of the application for protection form in which it was alleged that she opposed policies of the Vietnamese Government on [Social media]. In response, the applicant said that she’d made the comment a long time ago and couldn’t recall what it said. She hypothesised that she’d read an article and made a comment about how the government take money, are corrupt, take land from people and don’t practice justice.
The applicant claimed that she deleted her [Social media] account because when she made the comments, she received threatening messages from people who worked for the local government in Hải Phòng through Messenger.
In her application form, the applicant claimed that she was banned from school, prevented from finding work and prevented from contacting other anti-government group members. She also claimed that her family were threatened. The applicant raised none of these concerns during the hearing. When asked about the issues she faced in Vietnam because of her political activism, the only thing mentioned was arrests. In addition, the applicant gave evidence that she completed school in Vietnam in 2005 and went on to further study in [Country], indicating that she was not banned. The applicant had no recollection of the claims regarding online activity when first questioned about it and couldn’t provide any specific information about what was said.
The applicant was unable to provide any information about who arranged the protests despite having claimed in her application form that she was a member of an anti-government propaganda group and prevented from contacting other anti-government group members. Even with the additional information provided at the Tribunal hearing, the applicant’s evidence was vague and unconvincing.
As discussed with the applicant at the hearing, while I accept that political activists are at risk of harm, based on her account of events I do not accept that she would face a real chance or risk of persecution from Vietnamese authorities. The Department of Foreign Affairs and Trade (DFAT) reports that activists in Vietnam face a moderate risk of official discrimination. Activists who are known to authorities as active organisers of protests, or who openly criticise the state, may be subject to surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. DFAT sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.[6]
[6] DFAT, Country Information Report Vietnam, 11 January 2022.

In response to information published in the DFAT report, the applicant acknowledged that high-profile activists would be more likely to come to the attention of the national government. However, she felt that local authorities could still make your life difficult at the provincial level and in regional areas. I accept that the harassment of participants in local protests cannot be discounted. Nevertheless, when weighed against the other evidence outlined in this decision, I do not accept that the applicant ever participated in protests in support of religious freedom and therefore, I do not accept that she would face a real chance or risk of harm from local authorities in Hải Phòng.
In relation to the alleged land dispute, I asked the applicant if her father had experienced any further issues since 2010. She said that he’d been ok and commented that if you don’t cause any issues, they will leave you alone. Given the passage of time, the fact that the relevant land has already been acquired and developed, the absence of any further incidents and the fact that her father has remained in Vietnam, I do not accept that there would be a real chance or risk that the applicant would face harm as a result of a property dispute or a dispute between her family and the local authorities.
The applicant applied for a protection visa on 4 December 2018, almost four years after she first arrived in Australia. In addition, the applicant returned to Vietnam twice since the alleged protests and arrests took place around 18 years ago. This is not indicative behaviour of someone who fears for their freedom and physical safety. At the Tribunal hearing, the applicant gave evidence that was compelled to return to Vietnam by the circumstances (to apply for a visa and to attend the funeral of her mother), but that did not mean she was without fear. The applicant provided no explanation for the delay in applying for protection. I do not consider that the applicant provided a convincing justification for the delay or return travel.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[7] The applicant’s actions suggest that this application was her only option to remain in Australia, as opposed to being motivated by a fear of returning to Vietnam. The applicant remained in Australia for almost 12 months with no valid visa, at risk of detection and deportation, before she applied for protection. The applicant could have sought advice on her options to remain in Australia at any time since the refusal of her student visa in November 2017.
[7] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
When first asked why she was concerned about returning to Vietnam, the applicant said that her children live and go to school here in Australia. Their father is in Australia too, and even though they aren’t together, he has always supported her. The applicant said she was hopeful that she could have the visa so she could remain with her children. At the conclusion of the hearing, the applicant noted that Australia is peaceful and her job is meaningful. Her comments and immigration history support a finding that her application was not motivated by a well-founded fear of persecution.
Considering the inconsistencies between the claims made in the application for protection and the evidence provided at the hearing, the significant time that has elapsed since the last claimed incident in Vietnam, the relative ease with which the applicant was able to travel in and out of Vietnam and the delay in applying for protection once the applicant was in Australia, especially once the applicant had no valid visa, I do not consider the applicant to be a credible witness. Having regard to the evidence cumulatively and the applicant’s narrative as a whole, I do not find the applicant’s evidence in relation to the risk of harm from local or national authorities in Vietnam to be credible. I do not accept that the applicant would face a real chance of serious harm from local or national authorities or the government in Vietnam in the reasonably foreseeable future.
The applicant’s children are not applicants in the current application for protection. As such, I cannot consider any potential risk they might face if they were to travel to Vietnam with their mother. In addition, the ‘best interests of the child’ principle in United Nations Convention on the Rights of the Child has no application to the determination of protection visas. The consideration of the best interests of children who are not applicants for protection would be to focus on the wrong person.[8]
[8] AZAEH v MIBP [2015] FCA 414
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I considered the alternative criterion in s 36(2)(aa). For the same reasons that I found there is no real chance of serious harm from local authorities or the Vietnamese Government, I find that the real risk element of the test in s 36(2)(aa) has not been met.[9] I find that there are no 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 she will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[9] As per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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.
Sheridan Lee
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.
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