2009986 (Refugee)
[2025] ARTA 1396
•20 June 2025
2009986 (REFUGEE) [2025] ARTA 1396 (20 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2009986
Tribunal:General Member J Wilson
Date:20 June 2025
Place:Canberra
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – victim of loan shark – physical assault – fear of killing – attack on home – period of unlawful residence – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND AND APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Tribunal is satisfied that the applicant is [an age]-year-old male national of Vietnam. According to the movement records, the applicant has been living in Australia for over 11 years. He arrived in 2013 as the holder of a student visa, that was subsequently cancelled, after which time he remained in Australia without a valid visa for a period of approximately four months during 2017. The applicant has been the holder of a Bridging Visa (E) (subclass WE 050) since 17 August 2017.
On 16 April 2019 the applicant applied for a protection visa, claiming in summary that he feared returning to Vietnam because he would be beaten to death because of debts he owes.
On 9 June 2020 the delegate refused to grant the applicant a protection visa. The delegate considered the applicant’s claims contained minimal detail and pertained to a private dispute, such that the delegate was not satisfied that the claims related to the refugee grounds set out in s 5J(1)(a) of the Act. The delegate found the applicant was not a refugee, as defined by s 5H of the Act. The delegate proceeded to assess the applicant’s claims under the alternate (complementary protection) criterion per s 36(2)(aa) of the Act and found that the applicant could obtain effective state protection from the Vietnamese authorities, such that there was not a real risk that he will suffer significant harm on his return to Vietnam. The delegate ultimately concluded that the applicant was not a person to whom Australia owed protection obligations.
On 15 June 2020 the applicant lodged an application for review of the decision to refuse the protection visa in the (then) Administrative Appeals Tribunal (AAT). As the application for review was not determined by 14 October 2024, when the AAT became the Administrative Review Tribunal (the Tribunal), the application is to be determined by the Tribunal in accordance with the provisions of the Administrative Review Tribunal Act 2024 (Cth).
The applicant appeared before the Tribunal by video conference on 11 April 2025 to give evidence and present arguments. The applicant was not represented. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. There were no witnesses called to give evidence.
RELEVANT LAW: 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) of the Act 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) of the Act, 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) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), 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.
CLAIMS AND EVIDENCE
Evidence before the Department
In his protection visa application, the applicant declared his parents lived in Vietnam and that he had no contact with his relatives outside of Australia. He wrote that he was atheist, and was able to speak, read and write Vietnamese. He declared he had completed High School in Vietnam, then travelled to [Country 1] for a six-month period in [year range] to study English.
With respect to his claims for protection, the applicant wrote:
a.he left Vietnam to study abroad to improve his career prospects;
b.that if he returned he would be beaten to death because of debts;
c.that ‘they’ have called him and threatened him that they would take his life if he doesn’t pay back the monies;
d.‘they’ came to his parents’ house and mistreated them;
e.he could not seek state protection because ‘they’ are connected with the authorities;
f.he could not relocate because ‘they’ could find him, and that ‘he’ has a copy of his [the applicant’s] National ID card which could track him down.
In support of his visa application, the applicant submitted a Commonwealth Statutory Declaration declared on 7 May 2019, which stated:
a.he came to Australia to study English and gain skills to build a better life for his family in Vietnam;
b.his family lacked the financial resources to support his travel, so they took a loan valued at [amount] Vietnamese Dong (VND) from a loan shark;
c.his parent’s fishing business was unable to support the repayments of the loan;
d.the lender demanded a higher payment of interest, and his parents could not afford to pay, so the lender brought five men to the applicant’s parents’ house who destroyed the property and furniture using physical acts of violence;
e.two more men have been to the applicant’s parents’ house every two weeks threatening them, and contacting [the applicant] threatening physical harm or worse when he returns;
f.the lender believes the applicant can work in Australia and should have repaid the loan;
g.the lender has copies of the applicant’s National ID card and forced his family to sign an agreement that they would not go to the police for help;
h.the applicant has been hiding in Australia, the lender has been trying to make contact with him and trying to destroy is family’s business while he has been away;
i.the applicant is scared to return to Vietnam for his own safety because he is easily identifiable.
There is no evidence of the Department conducting an interview with the applicant.
Evidence before the Tribunal
On 21 January 2025, the applicant returned a completed pre-hearing form to the Tribunal which stated:
The loan shark gang where I live threatened to beat me to death if I returned without paying them a huge amount of interest which I cannot pay because they charge very high daily interest.
Oral evidence provided at the hearing
The applicant’s oral evidence presented at the hearing is broadly consistent with the claims made in his protection visa application and statutory declaration. He did not seek to introduce new claims, although he did provide a greater degree of detail to support his earlier claims.
Relevantly to the Tribunal’s decision, the applicant gave oral evidence that:
a.he wrote his protection visa application himself with the assistance of a friend to translate certain aspects;
b.he was born and raised in the Quang Binh province of Vietnam;
c.both his parents are now elderly and no longer work. His father had been a fisherman and his mother a housewife. He has three brothers, who are each also fisherman in the same province, and a sister who works as [an occupation 1]. His parents live modestly, with some limited financial assistance from his siblings. His sister lives close to his parents and he keeps in touch with her occasionally by telephone. He says he can only speak to his parents when his sister visits them, because his parents cannot operate a telephone without her assistance;
d.he did not work in Vietnam, other than to assist his father with the fishing business;
e.when he first arrived in Australia he worked assisting a handy-man, but has not held any employment for a long time owing to the fact he does not have permission to work. He says he previously relocated to Melbourne and Perth where he has relied on the generosity of friends who have permitted him to live with them. He said he helps them with their garden;
f.he is currently living in Sydney with friends;
g.his father’s fishing business was impacted by the Formosa accident (which the Tribunal understands refers to the environmental pollution incident that occurred in 2016 which severely impacted marine life off the coast of Vietnam) and they suffered economic hardship after that incident because his father lost his livelihood and could not repay the loan;
h.he feared harm from the loan sharks, in particular being assaulted and kidnapped by the loan sharks until the debt is paid;
i.with respect to past harm, he said he was already in Australia at the time of the Formosa incident but that towards the end of 2016 five men entered his parents’ home, hit his parents and smashed the furniture;
j.he states his sister was at their parents’ home that afternoon as she was delivering groceries. He said they were forbidden by the men to take photos or use their phones and subsequently smashed his sister’s phone when she tried to call the applicant to tell him what had happened;
k.he said he had no evidence of a loan contract, or any evidence of the attacks or home destruction;
l.With respect to the loan, the applicant told the Tribunal that:
i.his mother had found a loan shark named ‘[Mr A]’ through neighbours in their village who knew him;
ii.he rode his mother on a motorbike to a local café in mid-2013 where they met [Mr A] and another person to discuss the loan request;
iii.they returned to the café the next day to receive the loan of [amount] VND;
iv.the loan agreement was verbal, stating the loan sharks would not want paperwork being given to police and there was an arrangement that his mother would pay between [amount range] VND each month in cash at a venue to be agreed;
v.his mother had made repayments for 12-13 months that he believes exceeded a value of [amount] VND;
vi.he was unsure of the total outstanding amount or when the last repayment was made;
vii.his parents had been assaulted on at least ten occasions, and the lenders had visited their house on many more occasions;
viii.his parents reported the home assault to the local police however no action was taken and that he distrusted authority as a result;
ix.his parents sought medical attention from a local nurse however there was no medical certificate or other documentation available;
x.his parents last received threats prior to the last Lunar New Year;
xi.the loan sharks are an organised syndicate with a large network;
xii.when asked if his siblings could help repay the loan he said they could not, because they had their own families to support and because the cost of the interest would exceed their wages.
The Tribunal raised the possibility of the applicant relocating within Vietnam, possibly to a larger city. In response, he stated that he ‘has no money and could not survive there’. He also said the organised crime syndicate has a wide network and that his family is under surveillance such that they would find him if he tried to visit his parents. He said he would need to live life in Vietnam in hiding.
At the hearing, the Tribunal shared relevant excerpts of the DFAT Country Information Report - Vietnam with the applicant, namely that Vietnam is generally regarded as a safe country,[1] that loan sharks do not typically retort to violence,[2] that the Vietnamese Government is taking action against loan sharks,[3] that state protection and the possibility of relocation to a safe area available.[4] When asked if the country information should be applied to the applicant differently, he stated that his experience is ‘totally different’ to that expressed in the DFAT Report. He provided no details of why his personal circumstances might mean that the information contained in the report might not be applicable to him, or be applied differently.
[1] Department of Foreign Affairs and Trade (Commonwealth), Country Information Report Vietnam (Report, 19 February 2025), [2.80].
[2] Ibid [3.175].
[3] Ibid [3.180].
[4] Ibid [3.181] and [3.183].
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant’s claim satisfy the requirements in s 36(2) of the Act for the grant of protection in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility of claims
While the applicant’s claims have remained broadly consistent, the Tribunal has identified differences between the written and oral evidence, namely that in his statutory declaration the applicant wrote ‘that the lender forced his family to sign an agreement that they would not go to the police for help’ whereas in the hearing the Tribunal asked whether his family had ever signed any written agreements with the lenders to which he responded ‘no’. When the Tribunal raised its concern about the differences in his evidence, the applicant stated he had interpreted the question differently. He sought to explain his response by saying that they did not sign a loan document, but that he and his mother were asked by the loan sharks to sign a written commitment that they would not go to the police. When asked if he could produce that document, he said he could not because the loan shark kept the only copy of the document.
The Tribunal also notes that the statutory declaration states the sum borrowed was [amount] VND whereas his oral evidence stated that the original sum was [much smaller amount] VND. The Tribunal considers that difference may be explained by a typographical error and does not attribute any negative weight to this difference.
The Tribunal explained to the applicant that in matters where there is an absence of supporting evidence it is often necessary for the Tribunal to make credibility findings, and that the time lapse or delay in seeking protection raised some credibility concerns about his claims. Specifically, the Tribunal raised its concern that the Formosa incident occurred in 2016, the first home assault incident on his parents occurred in late 2016 and yet he waited until April 2019 to lodge his protection visa application, suggesting that his protection claims may not be genuine. In response, the applicant said that at the time of the Formosa incident he still held a student visa with work rights and because he was still trying to save money to send home to help service the loan. He said it was not until he (belatedly) became aware that his student visa had been cancelled that he sought the assistance of friends who told him about the option of seeking a protection visa.
Additionally, the Tribunal raised its concerns that the applicant’s immigration history pointed to the possibility that his claims may not be genuine, because he had been an unlawful non-citizen for a period and that accordingly, he had limited other visa options available. The applicant explained it was not his intention to become an unlawful non-citizen and that it had occurred because he had had a psychological crisis when his parents lost their ability to repay the loan and that he stopped attending his classes, which subsequently led to the cancellation of his student visa – however he was unaware of the visa cancellation as he had failed to update his contact details with the Department and consequently did not receive the Department’s correspondence. The applicant clarified he did not seek any medical treatment in Australia for his claimed psychological crisis because of his financial constraints. When asked to describe the current state of his mental health, he said he was nervous and panicked when he received the Tribunal’s hearing notice because it elevated his fears about needing to return to Vietnam.
The Tribunal also noted that the absence of supporting evidence made his claims more challenging for a Tribunal to accept and asked the applicant if there was any reason why he did not ask his parents to give witness evidence to support him. The applicant first responded by saying ‘they did give evidence in the first proceeding but that it was rejected by the previous judge or member, so I didn’t think that they would be believed this time’, and that they have no physical evidence so I didn’t think it would be valid this time again. After the Tribunal sought seeking clarification of what prior proceeding the applicant was referring to, the applicant then revised his response to say ‘it’s not the case my parents gave evidence – but I understood from the decision that there was not enough evidence in my case and I didn’t think their evidence would be valid so I didn’t ask them to give evidence’. The Tribunal has checked the Departmental file and has found no information to suggest he attended an interview with the Department or that his parents were called as witnesses to any immigration-related proceedings previously. The Tribunal is not persuaded by the applicant’s response.
The Tribunal observed that during the hearing the applicant demonstrated a somewhat intimate knowledge of the seas and volunteered information concerning seasonal tidal patterns which leads the Tribunal to accept that he was born and raised in the Quang Binh province of Vietnam, that his family worked in the fishing industry, and that he assisted his father with the fishing business, as claimed.
Having considered the other written and oral evidence, the Tribunal also accepts that:
a.he has his two parents and [number] siblings remaining in Quang Binh province (despite the applicant not declaring his siblings in his protection visa application);
b.he has completed High School and has undertaken some English training in both [Country 1] and Australia;
c.that his father’s fishing business was negatively impacted by the Formosa incident which meant his father lost his livelihood. Accordingly, the Tribunal is prepared to accept that the applicant’s parents have experienced a level of financial hardship.
The Tribunal has considered additional country information and recognises that informal money lending services are widely available in Vietnam.[5] Notwithstanding the prevalence of informal and illegal money lending in his home country, having considered the totality of the applicant’s evidence, his personal circumstances, and the credibility concerns that the Tribunal put to him, the Tribunal does not accept that the applicant or his family took a loan from a loan shark. Specifically, the Tribunal does not accept that he and his mother took out a loan from a loan shark to the value of [amount] VND, or any other amount.
[5] Ibid [3.176].
It follows that the Tribunal does not accept that:
a.any repayments were made,
b.he or his parents were threatened by loan sharks or associated gangs or syndicates;
c.his parents were assaulted on over ten occasions;
d.his sister was also assaulted and had her phone smashed;
e.that his parents sought police assistance which was denied;
f.the applicant is in hiding in Australia.
The Tribunal reaches these findings for a combination of reasons including the country information available to the Tribunal, the lack of detail and supporting evidence provided about the loan, and because of credibility concerns about the claims.
Having regard to the country information, the DFAT Report states that corruption can occur,[6] however generally DFAT assesses the Vietnamese police force is effective in maintaining law and order and providing protection to most people,[7] and more specifically, that:
state protection from loan sharks is available, and there are examples of loan sharks being arrested, prosecuted and given long prison sentences. According to local media reporting, police in Ho Chi Minh City detected and punished 404 individuals across 263 suspected cases of loan sharking in 2023, and a further 115 individuals across 63 cases in the first quarter of 2024. According to the same reporting, police detected and eliminated 27 mobile applications offering loans at exorbitant rates of interest (up to 900 per cent annually), including ‘Goldvay’, ‘sugarvay’, ‘findong’, ‘wellvay’, ‘cfcash’ and ‘baovay’.[8]
[6] Department of Foreign Affairs and Trade (Commonwealth), Country Information Report Vietnam (Report, 19 February 2025), 63 [5.6].
[7] Ibid 63 [5.8].
[8] Ibid 56 [3.181].
In consideration of the country information, the Tribunal does not accept the claim made in the protection visa application that his family were denied assistance by the police, or would be denied State protection in the future.
Additionally, the Tribunal is concerned by the lack of detail surrounding the loan, in particular that the applicant could not detail the applicable interest rate or how much was remaining on the loan. He said this is because he was a young person at the time and because his mother managed the details. The Tribunal does not accept that claim because he is now aged [age] years and could be expected to have learned of the details of the loan over the past claimed 12 years the loan has been in effect.
The Tribunal has also placed some weight on the differences in the written claims and oral evidence concerning the existence of a written agreement with the loan shark, which undermine the credibility of his claims.
The Tribunal has also placed some weight on the applicant’s immigration history and delay in seeking protection as matters that weigh against his claims being genuine.
In his closing remarks at the hearing, the applicant sought to impress upon the Tribunal his good character, namely that he had no criminal history and that he did not wish to be a burden on others. He said that if he was able to earn an income he could pay his tax, manage his obligations, and give other people assistance.
If his character remarks are to be accepted, the Tribunal finds it perplexing he would continue to reside in a foreign country for many years in circumstances where he had a large debt that he could not service because he had no lawful status to work or ability to earn an income, whilst he knew his elderly parents were being regularly tormented and physically assaulted (on no less than ten occasions) by a loan shark or syndicate. To that effect, the Tribunal prefers to accept the applicant’s claim that he is of good character, that his family faces financial hardship as claimed, but that his claims concerning the loan and loan shark lack credibility.
For completeness, the Tribunal does not accept the applicant’s claims that he is easy to identify or that his family is under surveillance. The applicant did not elaborate on those claims at the hearing, and there is no other evidence, or observations that the Tribunal made at the hearing, that supports them.
The applicant confirmed he did not fear return to Vietnam for any other reason.
REASONS AND FINDINGS
Does the applicant satisfy the refugee criterion for protection?
The Tribunal has considered whether the applicant has a well-founded fear of persecution if he returned to Vietnam.
Having rejected the applicant’s claims concerning the existence of a loan or any threats to his safety associated with debts, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, by reason of the threats from claimed loan sharks or associated syndicates, or for any other reason, if he is returned to Vietnam.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution per s 5(J) of the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution it is not satisfied that the applicant meets the definition of refugee in s 5(H)1 of the Act. Because the applicant does not satisfy the definition of s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[9], 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. That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[10]
[9] (2013) 210 FCR 505.
[10] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), 170-1, cl 1169, 1180.
Following the Tribunal’s findings set out above that the applicant will not face any harm now, or in the reasonably foreseeable future, if he is returned to Vietnam, for the same reason the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Vietnam, there is a real risk he will suffer significant harm. Therefore, the Tribunal 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.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 11 April 2025
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.
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36 Protection visas – criteria provided for by this Act
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(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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