2008571 (Refugee)

2008571 (Refugee) [2022] AATA 3842 (9 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  2008571
HOME AFFAIRS REFERENCE(S):          BCC2019/4615954
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David James
DATE:9 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 August 2022 at 11:05am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – member of Cao Dai – anti-government sentiments of religion – claims are vague and without particulars and detail – non-attendance at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36. 65, 411(1)(c), 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2020 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 15 September 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 21 May 2020.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Issues
The issue in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant were returned to Vietnam he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The applicant provided a copy of the delegate’s decision with the application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
Applicant’s claims for protection
The applicant when applying for the visa stated that: “I obtained a visitor visa to visit my [brother], while the social and political circumstances in Vietnam is causing the feeling of no peace in the near future”. He explained in his application that in Vietnam, the anti-government campaign has been apparently seen and the Vietnamese communist leaders have kowtowed to China and surrendered their sovereignty and they do not have a strategy to stop Chinese influence. His claims are that:
a.he belongs to the Caodaism religion that promotes anti-government sentiment through local demonstrations which were not published on media and that members of the Caodaism religion have been discriminated against by the communists since the revolution against the French colonists;
b.that Caodaism members are monitored, followed and controlled by the local police;
c.that he left his wife and children behind while secretly obtaining a visitor visa without the knowledge of the local police and departed Vietnam for Australia; and
d.that if he was to return to Vietnam he would be arrested and detained for interrogation and possibly tortured by the local police.
Department interview
The applicant was not offered an interview by the Department.
Invitation to attend hearing
On 24 June 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 25 July 2022 the applicant advised the Tribunal that he did not wish to give evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow him to appear before it. The applicant provided to the Tribunal a Statutory declaration under his hand dated 24 July 2022 that he requested be taken into account by the Tribunal in which he repeated his claims and quoted from the delegate’s decision record (‘DFAT Country Information Report Vietnam’, 13 December 2019) stating that:
In recent years, independent branches of Cao Dai have reported incidents of surveillance, harassment, land property appropriation, and violence from both local authorities and the officially recognised Cao Dai Tay Ninh Sect.
This matter has therefore been determined on the evidence available to the Tribunal.
Country information
The Tribunal has taken into account the ‘DFAT Country Information Report Vietnam’, 13 December 2019, as relevant including the information under the heading of ‘Cao Daists’ at 3.43 to 3.45 which states that:
Cao Dai is an indigenous religion, incorporating components of Buddhism, Christianity, Confucianism, Hinduism, Islam and Taoism. The majority of Cao Daists reportedly reside in the Mekong Delta region.
Members of officially recognised Cao Dai congregations are generally able to worship and celebrate religious festivals without interference. In recent years, independent branches of Cao Dai have reported several incidents of surveillance, harassment, land and property appropriation, and violence from both local authorities and the officially recognised Cao Dai Tay Ninh Sect (or 1997 Sect), including:
- in March 2017, local authorities reportedly monitored and occupied independent Cao Dai temples in Long An Province
- in March 2017, village, district and provincial authorities reportedly seized a temple from independent Cao Daists in Dong Thap Province for use by a registered Cao Dai group, and attempted to coerce the independent Cao Daists to join the registered group
– in July 2017, independent Cao Daists in Binh Dinh Province were verbally harassed by local authorities while preparing for customary rites
- in January 2018, several independent Cao Daists in Tay Ninh Province were prevented from burying a deceased relative by members of the 1997 sect and local officials, who insisted that the ceremony use clergy from the 1997 Sect
- in April and June 2018, the 1997 Sect in Tay Ninh Province was reported to have demolished at least 15 graves belonging to independent Cao Daists whose families refused to join the 1997 Sect; and
- in June 2018, a prominent Cao Dai religious leader and human rights activist was physically assaulted in his house in Lam Dong Province by plainclothes individuals.
DFAT assesses that members of independent Cao Dai organisations face a moderate risk of harassment, and possible violence, from authorities or their proxies, including members of the officially recognised Cao Dai Tay Ninh Sect.
And the ‘DFAT Country Information Report Vietnam’, 11 January 2022 as relevant, including the information under the headings of ‘Political Opinion (Actual or Imputed)’ at 3.49 to 3.57 and ‘Cao Dai’ at 3.46 to 3.48 which states:
Cao Dai is an indigenous syncretic religion established in the 1920s by Ngo Van Chieu who claimed to have spoken to God in a séance. The religion incorporates components of Buddhism, Christianity, Confucianism and Daoism. It is hierarchical (with Catholic influences) and has a pantheon of saints from various religious traditions. Its most famous symbol is an eye in a triangle symbol, which represents God.
As with other religious groups, members of officially registered Cao Dai groups can worship mostly without restriction. The US Department of State 2020 International Religious Freedom Report noted an incident in which an officially registered Cao Dai group disrupted an unofficial Cao Dai service in a private home, and another similar incident at a temple. The unregistered group accused the Government of using the registered group as a proxy to disrupt their activities. DFAT cannot confirm if these incidents were linked to Government action or whether they represent a split between the two groups; schisms have formed in the past.
DFAT assesses unregistered Cao Dai organisations face a moderate risk of harassment, and possible violence, from authorities or other groups such as members of other Cao Dai sects. Members of the officially registered group face a low risk of official discrimination. DFAT is not aware of societal discrimination against Cao Daists.
And ‘Treatment of Returnees (Exit and Entry procedures)’ at 5.25 to 5.28 noting that at 5.25 the report states:
…In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
FINDINGS AND REASONS
The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicant chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. As such, the Tribunal has not relied upon the delegate’s decision record in forming its assessment and coming to its decision.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Vietnam and provided details of his passport with his application. Based on this material the Tribunal finds that the applicant is who he says he is, and a national of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
There is no evidence that the applicant has a right to enter and reside in a country other than his country of citizenship, Vietnam. The Tribunal finds that s 36(3) does not apply to the applicant.
Analysis
The Tribunal notes that it is for the applicant to make their case. In this case the Tribunal observes that the applicant has not provided a version of events with a level of detail necessary to satisfactorily establish the relevant facts of this case.
In this regard the Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim or claims. The Tribunal does not have the responsibility or obligation to specify or assist in specifying any particulars of the claim or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal observes that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of this case. Further, it is noted, despite having received an unfavourable decision from the delegate, the applicant notwithstanding the provision of a Statutory declaration in which his original claims were repeated and a section of the delegate’s decision record quoted has chosen not to give oral evidence and present arguments at a hearing.
The applicant claims to belong to a Cao Dai religious group that promotes anti-government sentiment through local demonstrations but has not provided any details as to when he joined this group, how the group is organised, where and when they meet and what issues or sentiments they promote and how these sentiments are anti-government in their nature and relate to his religion. He has not provided any details in this regard as to dates, times and locations and as such the Tribunal finds his claim to be vague and without particulars and detail that can sufficiently satisfy the Tribunal that he is in fact a member of this religious group.
Further he claims that his religion has been discriminated against by the Vietnamese government since the revolution against the French colonists. Notwithstanding the country information as outlined above at paragraph 18, and his quotation of such information from the delegate’s decision which supports this broad statement to some extent, the country information also indicates that Cao Dai religious followers are not being specifically and routinely targeted by the Vietnamese authorities where such followers are not directly involved in, or, organising anti-government protests or disseminating and promoting anti-government sentiment. The applicant has not provided any examples of his involvement in either his purported religion or his involvement in local anti-government demonstrations, or for that matter any information as to any anti-government activities that he has been involved in or any conduct on his part that could give rise to him having obtained an anti-government political profile that is actual or imputed to him as to his religion or otherwise. The Tribunal finds that the applicant does not have an actual or imputed anti-government profile and/or an anti-Chinese profile that has been expressed by the applicant through any alleged anti-government and/or anti-Chinese conduct either independently or through his alleged membership of the Cao Dai religion.
As to his claim that Cao Dai members are monitored, followed and controlled by the local police, he has also provided no details or examples of this alleged monitoring by the local police as to himself or any other members of his Cao Dai group or any examples relating to any Cao Dai religious members.
In relation to his departure from Vietnam and his claim of secretly obtaining a visitor visa without the knowledge of the local police, this statement again lacks any detail as to how he ‘secretly’ obtained his visitor visa which he indicated was for the stated purpose of visiting his brother in Australia. Further this claim when considered with his claim that he as a Cao Dai member would face arrest, and detention for integration and possibly torture if he returned to Vietnam, suggests he fears that he has an anti-government profile with the Vietnamese authorities due to his religious involvement and his religion’s alleged anti-government sentiment. However, his ability to depart Vietnam without incident if he had such an anti-government profile is inconsistent with the country information as outlined above at paragraph 18 as to ‘Exit and Entry procedures’.

Therefore, the Tribunal finds that the applicant is not a member of the Cao Dai religion, that he has not been, nor will be, discriminated against for such actual or imputed membership of that religion. The Tribunal also finds that the applicant has not had any involvement in promoting anti-government sentiment through any local demonstrations and that he has not been, nor has any actual knowledge of any Cao Dai members being monitored, followed and controlled by any local Vietnamese police. The Tribunal does not accept that the applicant ‘secretly’ obtained a visitor visa to travel to Australia without the knowledge of his local police and does not accept that he was, or is, of adverse interest to the Vietnamese authorities for any reason and that if he was to return to Vietnam that he would be arrested, detained for interrogation and possibly tortured.
For the reasons above the Tribunal does not accept the applicant’s evidence due to the vague nature of the claim and lack of detail that the applicant has provided. As such the Tribunal rejects the entirety of the applicant’s evidence and claims.
Refugee criterion
The Tribunal having considered all the applicant’s claims both individually and cumulatively does not accept any of the applicant’s claims and it is not satisfied that there is a real chance of serious harm for reasons of his claimed membership of a Cao Dai religious group and its promotion of anti-government sentiment in Vietnam and/or discrimination against it by the Vietnamese authorities. The Tribunal is also not satisfied on the evidence before it that there is a real chance the applicant will suffer serious harm amounting to persecution for any other reason either. The Tribunal finds that the applicant’s fear of persecution is not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
Because the Tribunal does not accept any of the applicant’s claims, it finds that there is no real risk that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk that he will suffer significant harm. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3842

9 August 2022

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