2118430 (Refugee)
[2025] ARTA 1537
•24 June 2025
2118430 (REFUGEE) [2025] ARTA 1537 (24 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2118430
Tribunal:Matthew Currie
Date:24 June 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 24 June 2025 at 8:57am
CATCHWORDS
REFUGEE – protection visa – Vietnam – harassment and threats by employer and gangsters – required to repay money stolen from workplace – application prepared by lawyer and claims not true – new claims of childhood sexual abuse and school bullying – no supporting evidence – visit to home country then period as unlawful non-citizen – country information – prevalence of sexual abuse – claim plausible – abuse stopped after moving to live with grandmother, and bullying after changing schools – applicant now an adult – experience and memory of trauma not serious harm – preference to stay in Australia not a protection claim – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2021 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 national of Vietnam, applied for the visa on 6 December 2020. The delegate refused to grant the visa on the basis that the applicant did not meet either the refugee criteria or the complementary protection criteria and was not owed protection in Australia.
On 6 December 2021, the applicant lodged an application for review with the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 23 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
BACKGROUND
The applicant arrived in Australia in January 2012 on a student visa. The applicant submitted a protection Visa application in December 2020. As part of that application, the applicant provided a copy of the biodata page from a 2009 Vietnamese passport, a copy the biodata page from a 2019 Vietnamese passport and a copy of the student visa issued to her in January 2012. Both passports were issued in her name.
Evidence before the Department
The applicant’s protection Visa application contained the following information on claims:
·She is a Vietnamese citizen who was born in Hai Duong in the North Vietnam. She grew up in Hai Duong.
·Around 12 years before her before she submitted her protection visa application, (approximately 2008) she had been employed as [an occupation] in [a workplace] owned by triads in Vietnam. One night, after the [workplace], she had been locking up the [workplace] when four masked men broke in, attacked her and stole the [workplace’s] takings.
·She awoke sometime later in hospital where she received treatment. After she had returned to work, her boss at the [workplace] told her that she was to blame for $50,000 that was missing from the till. Though she tried to explain what had happened, her boss did not believe her. Unfortunately for the applicant, the [workplace]’s CCTV cameras were not working on the night of the robbery, so she could not prove her story. Her boss told her that she must pay back the missing $50,000.
·Afterwards, gangsters harassed her. She was threatened, as was her family. She did not make any police report about these issues. Her family will not be protected. She cannot live in another part of the country because the Triad has connections all over Vietnam.
·She cannot return to Vietnam for these reasons.
As part of her protection visa application the applicant provided a copy of the biodata page from a 2009 Vietnamese passport, and the biodata page from a 2019 Vietnamese passport. Both passports were issued in her name, and both contained her photograph.
A departmental delegate made of the s 65 Decision in relation to this applicant’s case on 25 November 2021. In that decision, the delegate accepted the applicant was a citizen of Vietnam and found that Vietnam was her receiving country. The delegate noted that there was no evidence to suggest the applicant would be denied protection or assistance from the Vietnamese authorities if she returned to Vietnam and found that she was not a refugee. The delegate also noted that country information indicated that the police in Vietnam are effective and have the capacity to protect her and to conduct investigations. The delegate was not satisfied the applicant would face a real chance of significant harm and found that she was did not meet the complementary protection criteria. Having made these findings, the delegate was not satisfied the applicant was owed protection in Australia.
Evidence before the Tribunal
The Tribunal has considered the applicant’s protection visa application, and the claims lodged within that application. The Tribunal has considered the documents provided by the applicant (2009 passport, 2019 passport & 2012 student visa). The Tribunal is also considered a movement record obtained from the Department of immigration about the applicant’s travel to and from Australia. The Tribunal has considered a range of relevant country information about conditions in Vietnam.
The applicant attended a hearing for the Tribunal on 23 June 2025. During the hearing before the Tribunal in June 2025 the applicant provided the following relevant evidence:
·She is a Vietnamese citizen who was born in [Year]. She grew up in Hai Duong in the north of Vietnam. Initially she lived with her parents until the age of [age], but after her parents divorced, she moved in with her grandmother. Throughout the time she lived in Vietnam she was a student, and she never worked in the country.
·She arrived in Australia in 2012 on a student Visa. That visa was due to expire, and so the applicant returned to Vietnam for around a month in November 2013 to see her mother. Afterwards she returned to Australia and thereafter, continued to reside in Australia without a Visa for around seven years. In December 2020 the applicant submitted a protection visa application.
·This applicant has not married; however, she has a [child] who was born in [Month Year]. The applicant’s [child] resides in Hai Duong in Vietnam with the applicant’s mother.
·None of the claims advanced in her protection visa application (working in a [workplace], theft and assault, $50,000 debt, threats) were true. Those claims have been lodged on her behalf by an Australian lawyer who she did not know. They are untrue and she was never affected by problems like this in Vietnam.
·Between the ages of [age] and [age], this applicant had suffered sexual abuse at the hands of a close family member. The sexual abuse traumatised her. If she returned to Vietnam, she would be reminded of these issues and she feared something similar my happened to her again.
·This applicant suffered from bullying while she was attending intermediate school (Year 6 – Year 9) in Hai Duong. She found this bullying to be traumatic. Though she herself is no longer a student, she fears her children may suffer from this type of bullying in Vietnam.
·The applicant has acclimatised to her life in Australia. She has not lived in Vietnam for a long time, and she does not wish to return. She would prefer to live and work in Australia.
The Tribunal has considered the oral evidence the applicant provided during her Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether this applicant meets the refugee criteria, or the complementary protection criteria of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
This applicant claims to be a citizen of Vietnam who was born in [Year]. As part of her protection visa application, the applicant provided a photocopy of the biodata page from a 2019 Vietnamese passport and a 2009 Vietnamese passport, both issued in her name. She provided a range of biographical information in her protection visa application and further information about her life in Vietnam in her 2025 hearing before the Tribunal. At that hearing, the applicant provided the original copy of her 2019 Vietnamese passport. The Tribunal has considered all of this material. The applicant has established her identity to the Tribunal’s satisfaction. Tribunal accepts that she is a Vietnamese citizen who was born in [Year]. For the purposes of this decision, the Tribunal finds that Vietnam is her receiving country.
Throughout her life in Vietnam, this applicant lived in Hai Duong, in the north of the country. During her Tribunal hearing the applicant indicated that her remaining family, including both of her parents, her brother, her grandmother, and her own [child] were residing in Hai Duong. In the circumstances, the Tribunal concludes that should this applicant returned Vietnam she would return and reside in Hai Duong as she had in the past.
Analysis & Reasons
Original protection claims/New protection claims
This applicant’s original protection claims were lodged in her 2020 protection visa application. As indicated in the summary above, during her June 2025 Tribunal hearing the applicant indicated that none of her original claims for protection (those relating to working in a Triad [workplace], assault, theft, $50,000 debt and threats) were true. She said that these claims had been lodged on her behalf by a lawyer in Australia who she had never met. She clearly stated that none of these events that ever happened to her and that she had never worked in a Vietnamese [workplace] or had any problems like those described in her 2020 protection visa application.
Considering the applicant’s clear renunciation of these claims, the Tribunal accepts that these claims are not true, and that the applicant did not suffer problems like this in Vietnam. The Tribunal accepts she did not work in a Triad [workplace], nor does she owe $50,000 and that she was not assaulted or threatened. Having made these findings, the Tribunal will not consider these matters further.
Having renounced her original claims for protection, during the applicant’s Tribunal hearing she put forward three new claims. These were:
· She suffered sexual abuse between the ages of eight and 12 in Vietnam which had traumatised her.
· She suffered school bullying while she attended Intermediate School (Year 6 – Year 9) in Vietnam.
· She had grown accustomed to a life in Australia and wish to stay in this country.
Sexual Abuse
The applicant claims that between the ages of eight and twelve she suffered sexual abuse at the hands of a close family member. She says that the sexual abuse she suffered traumatised her. She says that if she returned to Vietnam she would be reminded of these issues and she feared something similar my happened to her again.
The Tribunal has several concerns about the reliability of this claim. Firstly, the applicant has not provided any independent supporting evidence for her claims about this issue and the explanation she provided during her hearing was only brief and lacked detail. Secondly, this this issue was not mentioned in her protection visa application and was only raised as a claim for the first time during her Tribunal hearing in June 2025, around 13 years after her arrival in this country. Thirdly, though the applicant now cites the sexual abuse she suffered as the reason she cannot return to Vietnam, during the hearing she gave evidence that she had voluntarily returned to Vietnam in 2013 just prior to her student visa expiring. In the Tribunals view, these issues cast doubt on the applicant’s claims.
Nevertheless, country information before the Tribunal does indicate a high percentage of women have faced physical, sexual, emotional, behavioural and/or economic violence in Vietnam[1]. In the circumstances, the Tribunal is willing to accept that this applicant did face sexual abuse from a close family member between the ages of [age and age]. The Tribunal accepts that these events were very difficult for her and caused her significant trauma. The Tribunal accepts that even now the applicant is frightened by these events. The Tribunal is sympathetic to all these issues.
[1] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025, 20250219095017
Nevertheless, the Tribunal notes during her hearing the applicant stated that she was only affected by these issues between the ages of [age and age]. She said that the abuse ceased at the age of 12 when she moved in with her grandmother. She clearly stated that she had no further problems of this kind from that time onwards. On her own evidence the applicant continued to reside in Vietnam until she was almost 18, around six years after the abuse ended.
While the Tribunal has accepted that these events occurred and that these events were very traumatic for the applicant, given that they ceased to happen around the age of 12 and were not repeated in the years that she continued to reside in Vietnam, the Tribunal is not satisfied that these issues would recur now, around [Number] years after they last occurred. In this context, the Tribunal notes that the applicant is now a grown woman who is [Age] years of age and is no longer a small child. Given these events ceased when she was 12, and the passage of time, and applicant’s present age, the Tribunal is not satisfied that this applicant would face a recurrence of these problems again.
The Tribunal does accept that a return to the harm may upset the applicant and may cause her to remember these events more vividly. The Tribunal accepts this would be difficult for the applicant. However, the Tribunal is not satisfied that if this did occur it would amount to serious harm.
School Bullying
At her hearing, the applicant said that when she attended Intermediate School in Vietnam (Year 6 – Year 9) she was bullied. When asked to describe what had happened, she said that the school she attended was violent, and that she was body shamed. The applicant’s explanation for these issues was very brief, and the applicant has not provided any supporting evidence for her claims about these issues.
During her hearing, the applicant herself indicated that these issues stopped affecting her when she departed from the Intermediate school at the end of Year 9. Though she attended further schooling in Vietnam, this was at another school and these problems did not recur at the new school.
In the absence of any supporting evidence, the Tribunal has concerns about this claim, noting that it was only mentioned for the first time in June 2025, 13 years after her arrival in this country. However, notwithstanding these concerns, the Tribunal is willing to accept that the applicant was bullied while she attended Intermediate School in Vietnam as she claims. However, as noted above, this applicant is now [Age] years of age, and she is no longer a school student she has not indicated that she intends any further study or that this issue would affect her if she was returned to Vietnam now. During the hearing, the Tribunal expressed the view it did not appear this would be a problem for the applicant now, given her age and that she was no longer a student, the applicant conceded that these issues would not affect her now. In the circumstances, the Tribunal is not satisfied that she would face a real chance being affected by school bullying, should she return to Vietnam now.
The applicant argued that her children may suffer such problems in the future if they were educated in Vietnam. The Tribunal has considered this line of argument; however, this appears to be a claim lodged on behalf of children who are yet to be born, or her existing [child], who is not a party to this case. In the circumstances, it appears that these claims are entirely speculative. The Tribunal will not consider this line of argument further.
Acclimatised to Australian life
The applicant said she was acclimatised to life in Australia and did not wish to return. She said she earned good wages in Australia and wanted to stay here. The Tribunal accepts that this is all true. Tribunal accepts the applicant has been in Australia for around 13 years and that she has acclimatised to life in this country well. The Tribunal accepts the applicant does not wish to return to Vietnam and that she earns a good wage in this country.
However, the applicant is a citizen of Vietnam who was born in that country and who resided there until she was almost 18 years of age. She has spent more time in Vietnam than she has in Australia, and she continues to speak the Vietnamese language. She has close personal family connections to Vietnam including her grandmother, her parents, her brother, and her [child]. According to evidence given in her hearing, she maintains regular contact with her family in Vietnam. The Tribunal considers that her family would be able to provide her with emotional and personal support to assist her to re-acclimatise to life in Vietnam. In any case, in the Tribunal’s view, the applicant’s claims about this issue are merely expressions of her desire to stay in Australia and are not protection claims. Having made these findings, the Tribunal will not consider any of these issues further.
Does the applicant satisfy the refugee criterion for protection?
For reasons already provided, the Tribunal is not satisfied that this applicant would face a real chance of further sexual abuse in the in Vietnam. In the circumstances, the Tribunal is not satisfied the applicant would face a real chance of any harm in Vietnam for this reason now. The Tribunal is also not satisfied that this applicant, would face a real chance of further school bullying. The Tribunal is not satisfied she would face a real chance of any harm for this reason now.
Overall, this Tribunal is not satisfied that this applicant would face a real chance of any harm in Vietnam for any of the reasons she has put forward in her protection visa application or in her 2025 hearing before the Tribunal. The Tribunal is not satisfied she has a well-founded fear of persecution for any of these reasons.
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).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Above, the Tribunal has accepted that any return to Vietnam what caused the applicant to remember events that traumatised her in the past. The Tribunal accepts that this would be very difficult for the applicant and that she may find it quite upsetting. The Tribunal accepts that the applicant does not wish this to happen. However, the Tribunal is not satisfied that any remembering of these events would amount to her facing torture, the death penalty will be arbitrarily deprived of her life. This the Tribunal is not satisfied that these events would amount to her being subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment. The Tribunal is not satisfied that these issues amount her facing a real risk of significant harm.
The Tribunal has otherwise found that this applicant would not face a real chance of harm arising from any of her claims for protection. As ‘real chance’ and ‘real risk’ have been found to meet the same standard[2], it follows that she would not face a real risk of significant harm for these reasons. The Tribunal is not satisfied she would face a real risk of significant harm for any other reason.
[2] MIAC v SZQRB (2013) 210 FCR 505
In the circumstances, the Tribunal is 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 of 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 23 June 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
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