2106418 (Refugee) - [2024] AATA 1134

2106418 (Refugee) [2024] AATA 1134 (3 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ngoc Anh Donald
CASE NUMBERS:  2106418 and 2315945
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Wayne Pennell
DATE:3 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits these matters for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 03 January 2024 at 9:55am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Roman Catholic – land dispute – money lender – political profile – member of the Queensland Chapter of the Viet Tan – low level member – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 57, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 27 September 2023.
The applicant, who claims to be a citizen of Vietnam, initially applied for a visa[2] and the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there was a real risk he would suffer significant harm. His application was refused on the basis that he was not a refugee as defined by the Act,[3] and therefore he was not a person in respect of whom Australia had protection obligations.[4]
[2]The applicant’s application was received by the Department of Home Affairs on 25 February 2016.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant was born in Vietnam and is currently aged [age]. He is married and has [number of] children. His wife and children are still living in Vietnam, as does both his parents. He has [number of] other siblings, and they also live in Vietnam with the exception of one of his brothers who went to Germany as a refugee about four years ago and he now lives in that country. The applicant has limited education and left school after completing year [level]. His parents operated a rice farm and when he left school he worked for them.
In regard to the circumstances that led the applicant arriving in Australia [in] April 2013, he lawfully departed Vietnam and travelled to [Country 1], and then onto [Country 2] before boarding a people smuggling boat and travelling to Australia. He is recorded within the Department’s records as entering Australia in an area of water at Ashmore Island. He was then taken to an immigration detention centre in Darwin on [date] April 2013.
Between 24 April 2013 and 18 December 2013, interviews were conducted by the Department with the applicant, and they exchanged correspondence. During this time the applicant disclosed that he and his family were not politically active in Vietnam and he was not a member of any social or religious group. He left Vietnam because there were no human rights in Vietnam and the Vietnamese government had confiscated his land and he had no rights to claim that land back. He was also assaulted by ‘thugs’ employed by the government when he tried to recover his land. He also claimed that he was oppressed by the government because he was a Roman Catholic, and had borrowed VND 150 million, which is approximately AUD 7,600, from people (loan shark) for the trip and he agreed to repay with interest within one year or they would take his house and belongings.
On 28 April 2016, the Department wrote to the applicant and advised him that because he had entered Australia as an unauthorised maritime arrival (‘UMA’), he was invited to apply for a Temporary Protection (subclass 785) visa (‘TPV’) or a Safe Haven Enterprise (subclass 790) visa (‘SHEV’). He was told that if he made a valid application, the application would be considered under the Fast Track Assessment process. Subsequently, on 3 July 2017, he lodged his SHEV application.
On 6 August 2018, the Full Federal Court handed down a judgment in DBB16 v Minister forImmigration and Border Protection [2018] FCAFC 178 (‘DBB16’) and declared that the appointment of the proclaimed port in the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid. That decision meant that any person who arrived in Australia via the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013, and did not subsequently enter Australia at an excised offshore place, were not UMAs.
The effect of the Court’s judgment was that the applicant is not an UMA, and therefore not a fast track applicant.[5] At the time of the Court’s decision in DBB16, no decision had been made by the delegate in respect to his SHEV application. Instead, on 4 September 2020, the Department wrote to the applicant and advised him that because of the Court’s decision in DBB16, he was determined to be affected by that decision. He was also advised that his original SHEV was declared invalid and could not be considered; and the Department had initiated a Ministerial Intervention request on his behalf.
[5]Migration Act 1958 (Cth), s 5(1).
On 18 September 2020, the Department again wrote to the applicant and advised that he could lodge a valid application for a TPV or a SHEV. Subsequently, on 23 September 2020, he lodged an application for a protection visa. His claims remained the same and on 27 April 2021, the delegate refused his application, He then filed a review application with the Tribunal.[6]
[6]Lodged with the Tribunal on 13 May 2021.
On 27 February 2023, the Department wrote to the applicant and advised the following:
The Department previously advised you that your application made on 03 July 2017 was invalid because of section 91K of the Migration Act 1958 (the Migration Act). This was because you had held a Humanitarian Stay (Temporary) (UJ-449) Visa since you had last entered Australia.
On 4 May 2021, the Full Federal Court handed down a judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCFCA 63. In that case, the Full Federal Court found that the Minister’s decision to grant a UJ-449 visa to a person who entered Australia by sea, directly to the mainland before 1 June 2013 without a valid visa, was invalid. This was because the decision to grant the visa was based on the mistaken belief that the person was an unauthorised maritime arrival (UMA) within the meaning of section 5AA of the Migration Act and therefore subject to the operation of section 46A.
The decision to grant you a UJ-449 visa on 10 December 2014 is affected by the Full
Federal Court judgment and as a result, section 91K did not prevent you from making a valid application for a Safe Haven Enterprise (subclass 790) visa.
Following the Full Federal Court judgment, the Department has reassessed the application you made on 03 July 2017 and determined it as valid.
At a later time,[7] pursuant to section 57 of the Act, the Department wrote to the applicant asking him to respond to a number of questions, and it seems he responded within the appropriate time frame.
[7]On 16 August 2023.
On 27 September 2023, the delegate wrote to the applicant to advise that his application for a SHEV had been refused. The applicant then applied to the Tribunal for a review of that decision and he provided a copy of the delegate’s decision.
At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to his applications, but it was unable to make a favourable decision on that information alone.[8] He was invited to give oral evidence and present arguments at a hearing.[9]He subsequently advised the Tribunal that he would appear at the review hearing, which was scheduled for 19 December 2023.
[8]Advised on 22 November 2023.
[9]Hearing scheduled for 19 December 2023.
The Tribunal notes that he was represented at the review hearing and the hearing was undertaken with the assistance of an interpreter in both the English and Vietnamese languages.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[10] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[11] That is, the applicant 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.
[10]Migration Act 1958 (Cth), s 36.
[11]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[12]
[12]Migration Act1958 (Cth), s 36(2)(a).
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.[13] 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.[14]
[13]Migration Act1958 (Cth), s 5H(1)(a).
[14]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[15] 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 the Act, which are extracted in the attachment to this decision.[16]
[15]Migration Act 1958 (Cth), s 5J(1).
[16]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[17] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[18] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[19]
[17]Migration Act 1958 (Cth), s 36(2)(a).
[18]Migration Act 1958 (Cth), s 36(2)(aa).
[19]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[20]
[20]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise if the Minister is satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[21]
[21]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Vietnam. The Tribunal accepts his identity and, based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[24] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.
[24]Migration Act 1958 (Cth), s 499.
APPLICANT’S CLAIMS
At the time of the hearing, the applicant’s claims related to four specific issues:
(a)Religion (Roman Catholic);
(b)Land dispute;
(c)Money lender; and
(d)Political profile or imputed political profile.
Applicant’s religion
Throughout the process of applying for a protection visa, the applicant’s claims in respect to his religion have been consistent. He claimed that because he was a Roman Catholic, he had been discriminated against by the Vietnamese government. He gave no examples or provided any evidence that he was harmed in Vietnam, or that if he returned to Vietnam, there is a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm because of his religion.
Evidence was heard from [Father A], a priest from [Church 1], He confirmed that the applicant is personally known to him as a member of his church congregation, and the applicant is a devoted follower of the Catholic faith. [Father A] also confirmed that the applicant regularly attends weekend masses at the church, and there are occasions when from time to time when also attends mases held during the week days. The Tribunal accepts the evidence of [Father A].
When assessing the applicant’s claims and evidence about his religion, the Tribunal is satisfied that his religion is Roman Catholic and he regularly attends church masses in devotion to his faith.
However, the Tribunal does not accept that there is an unacceptable risk of harm to the applicant in Vietnam because he is a Roman Catholic. Available to the Tribunal is credible and reliable country information contained within the DFAT Country Information Report (‘DFAT report’). That country information provides that while Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations[25] and they generally do not experience societal discrimination.[26] The Tribunal notes that the applicant is from the Nghe An Province.
[25]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraph 3.22.
[26]The DFAT Country Information Report, Vietnam, 11 January 2022, page 15, paragraph 3.30.
The country information further provides that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.[27] There is no evidence that the applicant’s religious activities associated with being a Roman Catholic in Vietnam were undertaken at a place other than a recognised or registered Catholic church, or that he was otherwise politically active.
[27]The DFAT Country Information Report, Vietnam, 11 January 2022, page 15, paragraph 3.31.
Having carefully assessed the applicant’s claims and his evidence, the Tribunal is not satisfied that there exists a real risk that he will be harmed in Vietnam because he is a Roman Catholic and this claim is rejected.
Land dispute
The applicant’s claims as they are contained with his application relate to his family background as landowners prior to the Vietnam War when his grandparents were landowners, However, the land was confiscated when the Communist government came into power in 1975, as was all the private land in the country without compensation being paid to the landowners. He claimed that his grandfather opposed to the government’s action and was later sentenced to death. Since his grandfather’s death, his family have been targeted by the government, as well as being deprived of basic rights. He gave an example that he was not allowed to own land, his education was limited by the government and he could not work in government positions. He went on to say that tried to reclaim his family’s land at the local authorities, but they refused and beat him up. He stopped lodging applications as he was scared that they would kill him.
He explained that some people came and started working on the land. They told him that the government had assigned the land to them. He claimed that he had not received any verbal or written notification from the government, and he wrote a complaint to the village head and the village head told him to bring the matter to the [District 1] government office.
When went on to tell the Tribunal that he took his complaint to the [District 1] government office, but he was told to bring the matter to his village head. Therefore no person in authority dealt with his complaint. He claimed that on his way back from the [District 1] government office, he was stopped by two people on motorbikes. They had their faces covered and they beat him with a stick and warned him not to make any more complaints or he would suffer even more harm. He told the Tribunal that he could not identify them and they did not say if they were working for the government or anyone else. It was just his belief that they had been sent by the government. When asked to clarify when this incident took place, he told the Tribunal that it was sometime in the middle of 2011. Although he had made other written complaints about the land, nothing like this happened to him again and he remained in that area of Vietnam until he left to travel to Australia in April 2013.
It appears from the applicant’s evidence, the land belonged to the government and a decision was made to allow someone else to farm the land. His complaints fell on ‘deaf ears’ and there was an occasion where he was assaulted as he walked away from the government office after making a complaint. That incident took place well over two years before he left Vietnam and there were no further like incidents. Although the Tribunal cannot rule out that the applicant was attacked at random, there is certainly no evidence of the attack being connected to the government, or that it was a continuing and persistent campaign to harm the applicant.

Having carefully assessed the claims and the evidence in regard to the lands dispute issue, the Tribunal is not satisfied that there exists a real risk that he will be harmed in Vietnam because of a dispute over land and this claim is rejected.
Money lender
The applicant claims that to fund his travel expenses to Australia, he borrowed VND 150,000,000 (approximately AUD 9,000) from a friend and a loan shark. The loan shark told him that if he did not pay the money back, then the loan shark would confiscate his family home. Noting that it had been over 10 years since he borrowed the money, the Tribunal asked the applicant where his wife and family lived. His response was that they lived in their family home. He was then asked if he had repaid the loan, to which he told the Tribunal that he had fully repaid all of the money to the loan shark.
When carefully assessing his evidence as just outlined in these Reasons, the Tribunal does not consider (and so finds) that any substantial grounds exist to show that, as a foreseeable consequence of his removal to Vietnam, there is a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm because of any threat by the money lender. The money has been repaid and his house was not confiscated, his wife remains living in the family home and there is no evidence of any threat of harm to the applicant because he borrowed money. Therefore, the Tribunal is satisfied that this claim should be rejected.
Political profile
The applicant told the Tribunal that he is a member of the Queensland Chapter of the Viet Tan organisation. His involvement in that organisation commenced in beginning of 2017 when his friend asked him to come along to a Viet Tan meeting. When he attended the meeting, he filled out an application form to become a member. However, he did not initially become a fully-fledged member as there was a requirement to undergo some training and he was asked to involve himself in fund raising activities. Eventually he was formerly accepted as a member [in] August 2017 and presented with a certificate of membership. A copy of that certificate has been provided to the Tribunal and the Tribunal accepts that he is a member of the Brisbane Chapter of the Viet Tan.
In discussing his public profile as a member of the Viet Tan, the applicant gave examples of him attending a rally in Sydney in September 2019 to protest about the arrest of Mr Kham Chau (‘Mr Chau’) who was a member of Viet Tan. Mr Chau, who was a member of Viet Tan, went to Vietnam in 2019 using a false passport, and was arrested and sent to prison.
The applicant’s other activities have included his involvement in the annual rallies and marches in respect to the fall of Saigon which is held each year on 30 April.
To validate his membership of the organisation, the Tribunal heard evidence from [Mr B]. He is the [office bearer] of the Queensland Chapter of Viet Tan. His association with, and membership of the organisation started when he was in a refugee camp in Hong Kong in 1982, and since 1996 he has actively been a member in Queensland.
[Mr B] confirmed that the applicant was a member of the Viet Tan, and he met the applicant in February 2017. Although he considers the applicant to be a low level member, [Mr B] holds the belief that the applicant is a valuable member of the organisation.
The Tribunal sought [Mr B]’s views in regard to the applicant’s membership of the Viet Tan and whether that would have any impact or bearing on the applicant should he return to Vietnam.
[Mr B]’s evidence was that even though the applicant is a low level member, he was nevertheless a member, and his exposure in social media posts at various rallies would place him in a position where there would be an unacceptable risk of the Vietnamese authorities arresting him upon his arrival for questioning about his membership of Viet Tan. [Mr B] went on to say that he knows of others that have been tortured during questioning by the Vietnamese authorities.
In conjunction with that evidence, the Tribunal has been provided with a copy for a summons issues to the applicant’s wife in March 2023. She was required to attend the police station in her village for questioning. The applicant explained that he understood that the summons was issued to his wife because the authorities wanted to ask her about why the applicant has spent the past 10 years in Australia and never returned to Vietnam. Although his wife attended the police station, it appears that she was not formally questioned.
When undertaking a very careful assessment of the evidence relating to the applicant’s membership of Viet Tan, and as already indicated, the Tribunal accepts that he is a member of the Queensland Chapter, and this is support by the evidence of [Mr B], which the Tribunal also accepts.
In respect to him having a political profile or an imputed political profile, the Tribunal is aware of the principle that a political opinion is not limited to membership of a particular political party or support for a particular party or leader.[28] Furthermore, a person does not need to hold a particular political opinion in order to meet the definition of refugee under the Refugees Convention, it will be sufficient that the person is merely imputed with a political opinion by the persecutor.[29]
[28]C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430, [21].
[29]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.
Therefore, having particular regard to, and carefully assessing the applicant’s claim and the probative evidence, the Tribunal is satisfied (and so finds) that he has a political profile through his association with Viet Tan, and there would be a likelihood of an unacceptable risk of harm to the applicant because of his political opinion should he return to Vietnam.
REFUGEE FINDINGS
Real chance of serious harm
The Tribunal has already concluded a finding that should the applicant return to Vietnam, there is a likelihood of him be subjected to an unacceptable risk of harm because of his association with and membership of the Queensland Chapter of the Viet Tan.
Available to the Tribunal is reliable and credible country information which provides that within Vietnam, political opposition parties are illegal. Consequently, opposition parties are typically based overseas to avoid harassment, arrest and detention.[30] The Viet Tan is a United States of America based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[31] In 2016, the Communist Vietnamese government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[32] Other foreign-based opposition groups including the Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam and who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[33] Individuals, including Australian citizens with links to Viet Tan, have been sentenced to lengthy prison sentences for engaging in terrorist activities.[34]
[30]Report of a Home Office fact-finding mission to Vietnam conducted between 23 February and 1 March 2019, UK Home Office, 9 September 2019, page 9.
[31]The DFAT Country Information Report, Vietnam, 13 December 2019, page 25, paragraph 3.47.
[32]Vietnam declares San Jose-based Viet Tan a terrorist group, Associated Press (AP), 7 October 2016, accessed 20 December 2023.
[33]The DFAT Country Information Report, Vietnam, 13 December 2019, page 25, paragraph 3.47.
[34]The DFAT Country Information Report, Vietnam, 13 December 2019, page 26, paragraph 3.53.
The United States of America Department of State 2022 Human Rights Report outlines that the Vietnamese authorities restricted the movements of several political activists on probation or under house arrest, along with others not facing such legal restrictions. Authorities also continued to monitor and selectively restrict the movement of prominent activists and religious leaders. Authorities continued to prevent activists from leaving their houses during events that might draw public attention, there are arbitrary arrest and detention, particularly for political activists and individuals protesting land seizures or other matters deemed politically sensitive, remained a serious problem.
Already expressed in these Reasons is the method in which the applicant arrived in Australia. The country information provides that all individuals involved in people smuggling operations, whether they are the organisers or the travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning.[35] The country information further outlines that the Vietnamese authorities occasionally question returnees from Australia upon their arrival in Vietnam, and although the interview process generally takes between one to two hours, the focuses on obtaining information about the facilitation of any illegal movement on their part.[36] Given that the applicant has a political profile as a member of the Viet Tan, this exposes him to a significant risk of harm should he return to Vietnam.
[35]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.30.
[36]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.31.
When applying an overall balanced assessment of the evidence and the claims made by the applicant, along with applying careful consideration to the totality of the evidence and the country information, the Tribunal finds that if the applicant returned to Vietnam, there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there was a real risk he would suffer significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
DECISION
The Tribunal remits these matters for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…