2011065 (Refugee)

2011065 (Refugee) [2021] AATA 5054 (12 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011065
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Vlahos
DATE:12 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 12^th November 2021 at 9.30AM
CATCHWORDS
REFUGEE – protection visa – Vietnam – applicant had a debt for a substantial amount of money – subjective fear of harm from brokers – applicant declined the opportunity to appear before the Tribunal – applicant is HIV Positive – limited information – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 June 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 8 July 2019. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant in this case is not represented by a registered migration agent of Solicitor.
On 26 October 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the Application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to give oral evidence and present arguments at the hearing.
On 4 November 2021 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking further action to allow or enable her to appear before it. The applicant confirmed this on 5 November 2021.
This matter has therefore been determined on the evidence available to the Tribunal.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for one of the enumerated s.5J reasons and if not, whether there are substantial reasons for the Tribunal to believe that the applicant will suffer significant harm if returned to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s identity and nationality
The applicant provided a copy of her Vietnamese passport to the Department of Home Affairs (‘the Department’). On the basis of this document and without any evidence to the contrary the Tribunal finds that the applicant is a national of Vietnam, which is also the receiving country.
Third Country Protection[1]
[1] see, section 36(3) of the Migration Act 1958 (as Amended).
Also, there is not information before the Tribunal to support a conclusion that the applicant has a right to enter and reside in any safe third country and so the Tribunal finds.
The Applicant’s Claims for Protection
The applicant provided little detail in her application for protection. She claimed that:
- The applicant claims that she owes a lot of money to un-named brokers and will face severe penalties, such as incarceration if she returns to Vietnam.
- She claims she is unable to repay the large amount of money to the un-named brokers.
- She claims that she was blackmailed and threatened by these brokers for owning them a lot of money and she is fearful she will be punished if she were to return to Vietnam.
- The applicant also claims she does not know anyone that can help her in Vietnam as the police cannot be trusted as they can be bribed.
- She claims that she cannot relocate to another part of Vietnam as it will be unsafe not matter
where she goes.
- The applicant claims the police will not protect her.
- She claims the brokers are well connected in Vietnam and can find her anwhere.
- The applicant fears that she will be incarcerated or potential face physical punishment if she returned to Vietnam.
- She claims that if returned to Vietnam she is likely to face physical harm or bullying while
incarcerated.
·The applicant also claims that she suffers from a serious medical condition.
The delegate when considering the applicant’s application, noted that the applicant had been given the opportunity to provide all of the details of their protection claims. The delegate also noted that the application form completed by the applicant, required the applicant to provide all of their claims for protection and all documentation or other evidence to support their claims. The Tribunal also noted that on 11 July 2019, the applicant was sent the acknowledgement of a valid application having been made but advised that addition information relating to the applicant’s claims could be provided to the Department. The letter also informed the applicant that the decision on her application could be made without another opportunity for her to present any further information. The delegate noted that at the time of delegate’s decision, the applicant had provided no additional information.
The Tribunal noted that the Department was provided with two statutory declarations (dated [19 August 2019] and [20 August 2019]) which did not address or provide any additional information and details concerning the applicant’s claims for seeking protection in Australia, but made requests to be provided with Bridging visa C which provided her with the ‘work rights.’[2]The Tribunal noted that a the applicant had submitted a copy of a bank statement of funds she had in her name at the time she made the application.[3] The applicant’s file with Department also included, the Tribunal noted, a birth certificate for a the applicant’s child named, [name deleted] (DOB [deleted], [Suburb 1], Victoria).[4] Finally, the applicant provided an ‘Infectious Diseases Progress Report (HIV Positive Medical) which was dated 10 July 2017.[5] The applicant no submissions to the Department concerning her claims and none were provided to the Tribunal prior to this decision.
[2] see Department of Home Affairs File [number].
[3] Ibid, Bank statement dated 19.8.2019
[4] Ibid Department of Home Affairs File [number].
[5] Ibid, Department File [number].
The delegate refused the application, finding the applicant had provided limited information about her circumstances, not sufficient to establish her claims. Whilst she had claimed she had a debt for a substantial amount of money which was because she borrowed a significant sum of money from ‘unnamed’ third party or parties in Vietnam, she had not provided any information or detail regarding this claim. The delegate after considering the available country information noted that inadequacies existed in the policing and judicial systems in Vietnam, namely the existence of certain levels of corruption, lack of training and resources and cross-agency coordination within sections of the police and noted the assessment by DFAT that their (the authorities) capacity to provide state protection is limited. The delegate further noted DFAT’s assessment that in politically sensitive cases, the judicial system cannot be relied upon to provide a fair outcome; and that corruption may impinge on the prospects for a fair trial. However, there is no evidence the applicant would need to avail herself of any type of protection that is political in nature or involves a trial in the judicial system. The delegate determined that whilst the Vietnamese government was unable to prevent debts being incurred in the first place or protect borrowers from illegally high repayments, the authorities appear to be making inroads in arresting perpetrators when they attempt to enforce payment of debts through violence. The delegate was of the view that the applicant could obtain the protection from the Vietnamese authorities if she so required of deemed it necessary.
The delegate went on to highlight the fact that when the applicant was last in Vietnam, no evidence had been provided to Department to suggest that the applicant was the focus of the brokers from whom she had borrowed money from. While the delegate accepted that the applicant may have had a subjective fear of harm from brokers she had referred to her application, the country information indicated that this fear was unwarranted because of the recent crackdowns on illegal money lending organisations and the Vietnamese government’s focus on dealing with the practice of illegal lending organisations. The delegate concluded therefore, that the applicant could seek and receive protection from the Vietnamese authorities if the broker attempted to enforce repayment of the debt by using violence. The delegate found significant the fact that the applicant had been afforded the opportunity to provide further and better particulars of her claims but had declined to do so and hence, this (according to the delegate) demonstrated that there was no evidence that demonstrated that the applicant would be subject to significant harm if and when she returned to Vietnam.
With respect to the applicant’s HIV status, the delegate noted the available country information and noted that the Vietnamese government was active in dealing with HIV / AIDS in Vietnam incorporating HIV treatments into the general health service. According to the delegate there was no evidence that suggested that the Vietnamese authorities were denying treatment to those with HIV/AIDS, indeed country information demonstrated an apparent concerted effort to normalise the treatment of HIV/AIDS by the Vietnamese government. The Country information also noted the existence of legislation and policies that formally prevented the discrimination of those infected with HIV. Therefore, the delegate concluded that the country information did not support the presence of any official discrimination against those with HIV, equating to significant harm in Vietnam which could adversely affect the applicant if she was to return to Vietnam.
The applicant provided a copy of the delegate’s decision to the Tribunal.
In a submission to the Tribunal dated 4 November 2021 the applicant provided no explanation for her claims or provided any further evidence – new evidence to the Tribunal concerning her claims. The only request made by the applicant of the Tribunal was to consider her claims as they were submitted to the Department and requested that a decision on the papers, without the need to attend the scheduled hearing. No other requests were made by the applicant for the Tribunal to consider.
The Tribunal noted the applicant’s decision not to proceed to a scheduled hearing and to have the Tribunal determine her claims for Protection on the papers.
In accordance with s. 425(2)(b) of the Act the Tribunal has proceeded to decide the case on the material before the Tribunal.
Consideration
The Tribunal has carefully considered the claims made by the applicant. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 himself, 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 him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal invited the applicant to a hearing as the Tribunal had concerns about his claims. The applicant declined the opportunity to appear before the Tribunal to provide further information about her claims after being made aware that on consideration of all the material before the Tribunal relating to her application the Tribunal was unable to make a favourable decision on that information alone.
The applicant claims that she left Vietnam to escape being persecuted by illegal money brokers for a debt she could not repay. The applicant also feared that she would not be protected from such persecution if she remained in Vietnam by the Vietnamese state police. Given the material on the Department’s file the Tribunal accept this.
The applicant claims that she ‘owes a lot of money to un-named brokers. If the applicant had attended the hearing, the Tribunal would have asked her to provided details of how much money was owing to these brokers. The applicant would also have asked the applicant for details as to how these brokers had secured the loan, she claims to have with them. In other words, how she was being held liable for its re-payment. The Tribunal would have also asked the applicant to explain how she was ‘being blackmailed’ to make continuous payments towards a loan that she had difficulties in paying-off. In other words, what was the details of this ‘blackmail’? Had the applicant attended a hearing, the Tribunal would have asked her to provide details of how she came to deal with these ‘un-named brokers’. Moreover, the Tribunal would have asked the applicant to explain in detail – why she could not provide any description of these brokers? If the applicant had attended the hearing, the Tribunal would have asked the applicant to explain why she claims she knows no one in Vietnam that could help her? The Tribunal would have asked details from the applicant as to what help did, she request from the authorities and why it was not forthcoming as she claimed. Indeed, the Tribunal would have explored with the applicant her claim as to why she considered the Vietnamese state police as corrupt and open to bribery? Furthermore, the Tribunal would have asked the applicant to explain her claim that ‘the brokers were well connected in Vietnam’ and that they ‘could find her anywhere’. Also, the Tribunal would have asked the applicant if she had attended the scheduled hearing to explain her claim that if ‘she returned to Vietnam’ she would be ‘found’, ‘would be incarcerated’ and ‘face physical punishment’ when she was able to leave Vietnam without being stopped by her claimed persecutors at the airport. How then is it possible, if she returned to Vietnam her persecutors would find her ‘anywhere within Vietnam’?
Finally, the Tribunal would have asked the applicant to explain her claim, ‘she suffers from a serious medical condition’. The Tribunal accepts from the evidence on the Department’s file that the applicant is HIV Positive since 2010.[6] The Tribunal would have discussed with the applicant her serious medical condition and would have asked the applicant to explain how this medical condition would have caused her issues if he returned to Vietnam. The Tribunal would have also discussed the issue of the applicant’s medical condition in light of country information the Tribunal had accessed which report a more acceptable state response to HIV sufferers in Vietnam and would have asked the applicant as to what medical assistance she was reliant on currently, and whether that medical assistance was accessible in Vietnam. The Tribunal would have also asked the applicant to detail exactly any discrimination or maltreatment she might have faced or suffered or fear in suffering if other came to know that she was HIV Positive in Vietnam.
[6] see Department of Home Affairs File documents.

Had the applicant attended the hearing, the Tribunal would have asked her about her claims to fear harm on return to Vietnam in more detail.
The Tribunal has considered the material provided by the applicant to the Department and to the Tribunal and the information in the delegate’s decision and the Tribunal finds the information and documents provided by the applicant to be general and lacking detail, particularly in relation to her claimed fears.
The Tribunal finds that the applicant has failed to establish her claims. On the very limited evidence she has provided, and taking account her decision to decline to attend a hearing to provide more information, the Tribunal does do not accept that the applicant:
·     attempted to escape Vietnam.
·     owes a lot of money to un-named brokers.
·     has suffered harm, for any reason, in Vietnam, on the basis of the limited and undetailed information he has provided and his decision not to attend the hearing.
·     does not know anyone that can help her and that the police cannot be trusted and that the police are easily bribed.
·     if she returns to Vietnam will be incarcerated and would face physical punishment.
·     Would be mistreated, discriminated or unable to seek any medical assistance if she so required for her medical condition from the state medical/health system in Vietnam.
The Tribunal does not accept on the limited information before it that the applicant has had any involvement with un-named brokers or that a loan for an unspecified amount of money was agreed to by her.
The Tribunal does not accept the applicant has suffered serious or significant harm, for any reason, in the past, for the reasons above.
On the limited information before Tribunal, the Tribunal does not accept that the applicant would be harmed or mistreated because she owes and cannot pay a unspecified amount of money she had loaned from a unnamed broker while in Vietnam.
On the limited information before the Tribunal the Tribunal does not accept that the applicant would be harmed or mistreated for any reason connected to any loan amount she claimed to be owing to un-named local brokers with influence in Vietnam.
Having considered the applicant's claims, the Tribunal finds that the applicant has not established her claims and that there is no real chance that the applicant will face persecution for reasons of owing an unspecified amount of money because a loan she procured from local un-named brokers or any other s.5J reason if he returns to Vietnam now or in the reasonably foreseeable future.
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).
Complementary 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). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The Tribunal has had regard to her claims, as above, with regard to complementary protection, but has the same concerns which it wished to explore with her at the hearing. The Tribunal is not satisfied that the applicant has established that she will suffer significant harm for the claims she had made concerning a loan amount that is unpaid owing to local ‘un-named’ brokers of for any other reason.
The Tribunal has carefully considered the claims and the Tribunal does not accept that she has suffered any harm on the limited information she has provided. For the reasons above, the Tribunal does not accept that these circumstances give rise to a real risk of significant harm. She has not provided any other claims which the Tribunal has accepted. The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm.
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).
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2021] AATA 5054

12 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice