2011901 (Refugee)

2011901 (Refugee) [2022] AATA 1743 (22 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2011901

COUNTRY OF REFERENCE: Vietnam
MEMBER:Sean Baker
DATE:22 April 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 April 2022 at 4:11pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the Communist government – social justice and environmental advocate – family political background – particular social group – failed asylum seeker – Formosa waste spill protests – police summons – education – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 8 July 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 1 December 2019. The delegate refused to grant the visa on the basis that they did not accept the applicant had a well-founded fear of being persecuted on return to Vietnam, nor that there was a real risk she would suffer significant harm if removed from Australia to Vietnam.
The applicant appeared before the Tribunal on 28 October 2021 by telephone. On 14 December 2021 the applicant appeared by video to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Brother A] on this second occasion. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages. 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-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 applicant claims that:
·     Her parents, relatives and herself are oppressed threatened and intimidated in their daily lives. They do not follow the lead of the communist party and so are punished. They are not members of the communist party.
·     She was threatened as were her parents and child.
·     She was concerned about social justice and often participated in protests against companies that harmed people and the environment.
·     The Formosa spill impacted the applicant and her community and they lived in a polluted atmosphere.
·     She protested against Formosa and as a result she was threatened and harassed by intelligence elements of the government due to her participation.
·     She tried to seek help but was unsuccessful.
·     She tried to move to the South of the country but feared her husband and child would be harassed and mistreated so she stayed put.
·     She fears being punished, harmed, threatened for speaking up against their will, and she fears being placed in a labour camp, torture or imprisonment.
The applicant’s representative provided a detailed submission and a copy of the applicant’s father’s death certificate and her mother’s certificate of not being re-married.
The submission states:
·      the applicant’s father was assassinated by the Communists in [year] because of his actions as hamlet chief of [a named] Hamlet in Thua Thien, Hue. Her mother was a widow but passed away recently.
·     The applicant has been married twice. Her current husband and her [children] live in Thua Thien Hue Province. The applicant left school at [age] to trade [products] and ran a small [shop]. In 2018 the Formosa Steel company dumped waste into the ocean devastating the marine environment and damaging the livelihoods of people such as the applicant. Many people marched and many were arrested and beaten and jailed.
·     The applicant joined the demonstrators in Thua Thien Hue Province marching against the Formosa company and government. She did not think her participation would impact on her but she was requested to report to the local police station where she was warned her family belonged to the anti-Communist elements. She was frightened as many other demonstrators had not been summoned to report to the police station.
·     The applicant states her family belongs to the anti-Communist element because of the political background of her father who was assassinated by the Communists before the applicant was born. He was the hamlet chief and was against Communism. In 1975 when the Communists took over the South her family was oppressed and threatened, they were not permitted to continue study nor apply for jobs in government agencies.
·     In 1982 her brother escaped Vietnam because he had been oppressed and mistreated due to their family political background. He is now an Australian citizen.
·     While the applicant was in Australia visiting her brother, the police came to her home in Vietnam to look for her. They threatened to send her to re-education if they located her.
·     She may also be blamed with having engaged with overseas anti-Communist organisations.
Consideration
The protest and credibility concerns
I developed concerns with some of the claims made by the applicant. This was due to lack of detail and inconsistencies between her evidence and independent country information.
The applicant claims that she joined a protest of approximately 30 – 40 people who were protesting against the environmental damage caused by the Formosa Steel company spill which killed sea life and damaged the environment, impacting the economic situation for many people along a wide stretch of the Vietnamese coastline.
She claims that after attending this protest, she was summoned to the police station and given a warning. After this she departed Vietnam. In Australia, she was told by her family that the police had come looking for her.
There are several difficulties with these claims made by the applicant.
Firstly, and most significantly, the applicant at hearing was able to tell me very little about the claimed protest she attended. She said that this had happened in 2018 but could not tell me when with any more precision. On being asked for details of what happened she was unable to tell me what happened except that they gathered and then the police dispersed the crowd. I asked what had happened at the gathering and if anyone had spoken at the gathering. The applicant said she didn’t know, there were a lot of people and she didn’t pay a lot of attention to them. The applicant was also vague when asked about being called to the police station. When asked when this had occurred in relation to the protest, she responded that she did not remember and then after I asked her if it had been that day, the following day or the week after, she nominated that it had been a week after the protest.
I noted to the applicant that the lack of detail she was able to provide about these claimed events caused me to have concerns with whether they had occurred. She responded that she had gone to the gathering because her family economic situation was adversely affected.
I have very significant doubts about whether the applicant attended a protest in 2018 as claimed or at any time, given that she was unable to provide any detail about the claimed protest. Further, I doubt she was summoned to the police station in relation to this protest or for any other reason.
Secondly, the applicant stated at hearing that the gathering happened in 2018 and she also stated that the Formosa spill itself had also occurred in 2018. I raised with her information that the Formosa spill had occurred in April 2016 and that most protests had occurred in the months following this and up to a year later, and the country information indicated, and I had doubts that, there would have been protests in 2018.[1]. The applicant responded that she had gone along to the protest in 2018.
[1] UK Home Office, Report of a Home Office fact-finding mission to Vietnam, Conducted between 23 February and 1st March 2019, Published: 9 September 2019, p. 29; Radio Free Asia, Thousands of Vietnamese protest at Formosa Steel plant in Ha Tinh, 3 October 2016, available at: [accessed 12 April 2022]; Reuters, ‘Vietnamese protest one year after Formosa spill disaster’, Reuters, 7 April 2017, 12 April 2022];
I have significant concerns with the claim of the applicant that the spill had occurred in 2018, when country information clearly identifies that it occurred in April 2016, and that protests may have occurred but sporadically and had certainly ceased by the beginning of 2019 when a UK fact finding mission reported that protests against the Formosa disaster were no longer happening.[2] While I accept that there may have been sporadic protests in the years afterwards, her inability to be able to identify when the spill occurred causes me to further doubt that she attended a protest in relation to the spill in 2018 or at any time, nor that she was summoned to the police station.
[2] UK Home Office, Report of a Home Office fact-finding mission to Vietnam, Conducted between 23 February and 1st March 2019, Published: 9 September 2019, p. 29.
Lastly, the claims of the applicant lack plausibility. I put to the applicant information in the DFAT Country report for 2019 (which covers 2018 when the applicant claims these events happened). [3] This notes that the authorities may tolerate low level dissent. I noted to her that she had claimed that no one else had been asked to come to the police station, and this seemed inconsistent with the information from DFAT in this period, which states that organisers are more likely to face repercussions than those who simply attend a protest as the applicant has claimed to have done. I have had regard to her claim to come from a family who has had problems with the authorities but, having regard to the country information discussed below, I do not accept that this would explain this apparent implausibility.
[3] See DFAT Country Information Report Vietnam 13 December 2019 at [3.48], [3.49 – 3.56], see also UK Home Office, Report of a Home Office fact-finding mission to Vietnam, Conducted between 23 February and 1st March 2019, Published: 9 September 2019; C.f. DFAT Country Information Report Vietnam 11 January 2022 at [3.49 – 3.57], [3.65 – 3.66], discussed below.
The applicant did not directly engage with this question but instead stated that she wished to remain here, as she was scared to go back.
I have carefully considered the response of the applicant. I have also had regard to the more recent DFAT report, which indicates less tolerance for dissent and that even low-level protesters may be detained, with little clear logic about who will and will not be detained.[4] However, I place greater weight on the 2019 DFAT report, which reported on the period in which the applicant claimed the protest took place. I find that the applicant’s claims that she just joined the protest which had about 30 – 40 other people, went along and they were then dispersed and only she, not anyone else including organisers was called to the police station to be implausible when considered with the country information. When considered with the other concerns above this leads me to doubt that the applicant did attend a protest and was called to the police station as a result.
[4] DFAT Country Information Report Vietnam 11 January 2022 at [3.49 – 3.57], [3.65 – 3.66].
These concerns, taken together, lead me to disbelieve that the applicant attended a protest against the Formosa disaster in 2018 or at any other time, and to disbelieve that she was made to attend the local police station and given a warning and told her family was part of the anti-Communist elements a week after the protest or at any other time. They lead me to disbelieve that the police have come to her house in Vietnam since she travelled to Australia or at any time, threatening to send her to re-education camp, or that the authorities have shown any interest in the applicant at all.
Other claims
The applicant’s claims also take in her family background. She has claimed that her father was killed by the Communists in [year] for his actual or perceived support of South Vietnam. The applicant has provided a death certificate. She has also claimed that her uncle was shot in the forest in [year] around the same time. She claims that when the Communists took over in 1975 her family was oppressed and threatened and were not permitted to continue study nor apply for jobs in government agencies.
I have also had regard to the evidence given by her brother during the hearing where he stated that he had fled Vietnam around 1983, travelling to Hong Kong where he was accepted as a refugee and came to Australia where he lives.
I accept that the applicant’s father was the leader of the hamlet, may have been perceived as supporting South Vietnam and was killed by the Communists in [year]. I accept that the applicant’s uncle was also killed in [year]. I accept that in 1975 she and her brothers may have faced barriers to study but I also note that her brothers were able to go to university to some level and that the applicant was able to support herself and her family. I accept that she and her brothers may have been denied to some extent educational opportunities in the period after the end of the civil war due to their association at that time with their family, but I also find that such association has weakened over time, on the country information, and that for a considerable period the Vietnamese government, centrally and locally, has had little or no interest in those associated with the former South Vietnamese government, or who were actually or imputed to have opposed the Communists in the civil war. I accept that she and her brothers may have been denied educational opportunities when they were younger, but that is all I accept of the harm the applicant or her brothers experienced, and I do not accept that this harm is continuing or would be repeated now or in the future. I note also that the applicant was able to work and support herself and her family. I find she would be able to return and support herself and her family now.
I accept that her brother, [Brother A], who lives in Australia, fled Vietnam in 1983 and was recognised as a refugee and now lives in Australia.
However, the country information does not demonstrate that people whose families were involved in the Vietnam war in support of South Vietnam, or who may have been perceived at that time as opposing the Communist regime, experience anything more than very low level discrimination at the present time, for example in educational opportunities and the assessment is that discrimination against relatives of people who were involved in the Vietnam War, if it is exists at all, is low level.[5]
[5] DFAT Country Information Report Vietnam 11 January 2022 at [3.108 – 3.109]; United Kingdom: Home Office, Country Policy and Information Note Vietnam: Opposition to the State, September 2018, Version 3.0; DFAT Country Information Report Vietnam 13 December 2019.
When I put this information to the applicant, she said that she was asking for help to stay and requested compassion. She said that in a remote area such as her village they suppressed people and people had no human rights. The local authorities could act with impunity.
I also discussed with the applicant the information before me that the Vietnamese government were not concerned if citizens travelled overseas and applied for asylum and were unsuccessful, rather, they are concerned if people travel overseas and criticise the Vietnamese government.[6] I noted that she had departed Vietnam lawfully and could return lawfully. She did not respond directly to this point.
[6] DFAT Country Information Report Vietnam 11 January 2022 at [5.29 – 5.35].
I do not accept, on the country information, that the applicant will be considered or imputed to have engaged with overseas anti-Communist organisations. The applicant has not claimed to have done so, the information is that the authorities are sensitive to persons who have used their time overseas to publicly oppose the government but not that they suspect all those who have travelled and spent a considerable time overseas – indeed, many Vietnamese leave and remain overseas for considerable periods of time with no difficulties on return.[7]
[7] DFAT Country Information Report Vietnam 11 January 2022 at [5.29 – 5.35]

The applicant also noted that she was almost [age] years old, and she needed to stay in Australia to look after her brother who was unwell and divorced and needed her support. I accept that the applicant is almost [age] and that her brother in Australia is unwell and divorced.
Will the applicant face a real chance of persecution if she returns to Vietnam?
As above, I have not accepted the applicant’s claims that she attended a protest against the Formosa disaster in 2018 or at any other time, I have disbelieved that she was made to attend the local police station and given a warning a week after the protest or at any other time, and I have not accepted that the police have come to her house in Vietnam since she travelled to Australia or at any time, nor have I accept that the authorities have shown any interest in the applicant.
Whilst I accept the applicant’s claims that her father and uncle were killed and her brother fled in 1983, and that she and her brothers may have been denied educational opportunities in the past, I do not accept that such discrimination will take place now or in the future. Having regard to the country information it is clear that the Vietnamese government for some time has not been concerned with persons whose families were actually or imputed to oppose the Communist regime before or during the civil war (as opposed to those who are politically active at present), nor family members of those who have sought asylum, nor those who have spent time overseas but without publicly opposing the government, such as the applicant.
Whilst I accept that the situation may differ slightly in more regional and rural areas of the country, having regard to the country information I do not accept that this would extend to anything higher than very low-level discrimination, which I find below the level of serious or significant harm.
Further, I find that there is no real chance of the applicant being harmed as a failed asylum seeker on the country information before me. I do not accept that the applicant will be considered or imputed to have engaged with overseas anti-Communist organisations.
I have also considered the applicant’s claims cumulatively. Of her claims that I accept, I accept that her father and brother were killed by the Communist regime or elements in [year] and that her brother fled Vietnam in 1983 and was recognised as a refugee and settled in Australia. I accept she and her brothers may have been denied educational opportunities. I accept that she would be able to be identified as a failed asylum seeker. I accept that she is almost [age] years old and that she wishes to remain in Australia to care for her brother. Having carefully considered these elements of her claims which I do accept, I find on the country information that there is no real chance the applicant will be harmed by the authorities or anyone else for these reasons if she returns to Vietnam.
I find that there is no real chance the applicant will suffer serious harm from the Vietnamese authorities, local authorities or local police or anyone else for reasons of her actual or imputed political opinion and her membership of her family or any other basis if she returns to Vietnam now or in the reasonably foreseeable future.
Is there a real risk the applicant will suffer significant harm if she is removed from Australia to Vietnam?
As above, I have not accepted the claims of the applicant that she attended a protest, was made to attend the local police station and given a warning nor that the police have come to her home in Vietnam since she travelled to Australia or at any other time. I have not accepted that the authorities have shown any interest in the applicant.
While I have accepted her claims about her father, uncle and brother in Australia, I have also found on the country information that this would not result in any harm apart from, at most, very low-level discrimination, which I find below the level of significant harm.
Further, I find that there is no real risk of the applicant being harmed as a failed asylum seeker, on the country information before me. I do not accept that the applicant will be considered or imputed to have engaged with overseas anti-Communist organisations.
I have also considered the applicant’s claims cumulatively. Of her claims that I accept, I accept that her father and brother were killed by the Communist regime or elements in [year] and that her brother fled Vietnam in 1983 and was recognised as a refugee and settled in Australia. I accept she and her brothers may have been denied educational opportunities. I accept that she would be able to be identified as a failed asylum seeker. I accept that she is almost [age] years old and that she wishes to remain in Australia to care for her brother. Having carefully considered these elements of her claims which I do accept, I find on the country information that there is no real risk the applicant will be harmed by the authorities or anyone else if she returns to Vietnam.
I find that there is no real risk the applicant will suffer significant harm from the Vietnamese authorities, local authorities or local police or anyone else if she is removed from Australia to Vietnam now or in the reasonably foreseeable future.
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.
Sean Baker
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 1743

22 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction