2200048 (Refugee)
[2024] AATA 3814
•8 August 2024
2200048 (Refugee) [2024] AATA 3814 (8 August 2024)
DECISION RECORD
DIVISION:
Migration & Refugee Division
CASE NUMBER:
2200048
COUNTRY OF REFERENCE:
Vietnam
MEMBER:
Fraser Robertson
DATE:
8 August 2024
PLACE OF DECISION:
Perth
DECISION:
The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 August 2024 at 7:40am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – applicant feared being killed by a loan shark – borrowed money from a loan shark or unregistered money lender – criminal convictions – a failed asylum seeker – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 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
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicant's protection visa application claimed that he feared being killed by a loan shark if he was returned to Vietnam. The delegate refused to grant the visa because they were not satisfied that the applicant had a well-founded fear of persecution in Vietnam because his claims relating to the loan shark did not involve a s 5J(1)(a) reason. The delegate was also not satisfied that the applicant faced a real risk of significant harm if removed from Australia to Vietnam.
The applicant now seeks a review of the decision to refuse to grant him a protection visa and has provided a copy of the delegate's decision to the Tribunal. The applicant appeared before the Tribunal on 7 August 2024, assisted by an interpreter in the Vietnamese language.[1] Where relevant and material, I refer to his evidence below.
[1] The applicant participated in the hearing both in English and using the interpreter. I am satisfied that the hearing was conducted in a manner that was fair to the applicant.
The questions raised by this application is whether the applicant meets either the refugee criterion for protection contained in s 36(2)(a) or the complementary protection criterion contained in s 36(2)(aa) of the Act. For the following reasons, I have determined that the applicant does not meet either criterion. The decision under review will be affirmed.
RELEVANT LAW
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, either they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as a person who holds a protection visa of the same class.
I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[2] and the DFAT Country Information Report.[3]
[2] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
[3] 'DFAT Country Information Report: Vietnam', Department of Foreign Affairs and Trade, 11 January 2022, 20220111094403 ('2022 DFAT Report').
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the decision‑maker 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.[4]
[4] Migration Act 1958 (Cth), s 5H(1)(a).
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.[5] Persecution must involve serious harm[6] and systematic and discriminatory conduct.[7]
[5] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[6] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[7] Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[8] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[9] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[8] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[10]
[10] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[11] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.
[11] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
ANALYSIS, FINDINGS AND REASONS
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[12] The Tribunal has no responsibility or obligation to specify, establish, or assist an applicant in specifying or establishing their claims. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.[13] Rebutting evidence is not required before finding that a particular factual assertion is not made out.[14]
[12] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
[13] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[14] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
Country of nationality
The applicant claimed to be a national of Vietnam. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Vietnam is the applicant’s country of nationality and the receiving country.
The applicant's circumstances
The applicant completed high school in about May [year]. His mother encouraged him to travel to Australia to study. The applicant arrived in Australia in November 2014 intending to study as the holder of a student visa valid until 2019. Those studies were funded in part by his parents and in part by his income from working.
After completing English studies, the applicant enrolled in a [course]. He found it difficult to adjust to living in Australia, studying, and working, which resulted in him regularly not attending his classes. The applicant failed the first semester of his course.
The applicant returned to Vietnam in 2016. He told his mother that he would return to Australia and re-enrol, which he did. The applicant also failed the first semester of this course. Following this, the applicant did not undertake further studies but engaged in employment.
In mid-2019, the applicant received notice that his student visa had been cancelled, and he was instructed to leave Australia. Around this time, his mother called him and told him to return to Vietnam as he did not hold a visa. Around six months later, the applicant booked a flight back to Vietnam. As it happened, the border closures associated with the COVID-19 pandemic prevented his departure from Australia.
The applicant approached a Vietnamese agent for migration advice. He was told that they would lodge a protection visa application for him. In July 2021, that agent lodged a protection visa on behalf of the applicant, and around a month later, the applicant was informed that he received a bridging visa.
His application for a protection visa was refused in December 2021, and the decision was sent to the applicant. The agent applied for a review of the decision on behalf of the applicant in January 2022. By this time, the applicant had moved from New South Wales to Western Australia.
The applicant was subsequently charged with 'drug offences' and was taken into custody in May 2022. He remained in custody until his trial. At his trial in March 2024, the applicant was offered a 'plea deal' which he accepted. He pleaded guilty and was sentenced to the time he had already served. Upon his release, the applicant had planned to return to Sydney. However, following his sentence, the applicant was held at the District Court of WA. On the evening he was sentenced, his visa was cancelled, and he was taken into immigration detention. He has remained in immigration detention since that time.
The applicant claims that whilst he was in prison, some of his family members and friends turned their backs on him. Others wrote things on social media about the applicant being a thief. These things upset the applicant, who had always been a high achiever within his family.
I accept the above matters are true and find accordingly.
The applicant's case
The applicant abandoned the claims for protection made in his protection visa application concerning having borrowed money from a loan shark at the hearing. He gave no evidence of having borrowed money to fund his studies in Australia, let alone having borrowed money from an unregistered money lender or 'loan shark'. I accept the applicant's evidence that an agent made those claims without his knowledge. I find that the applicant does not face a real chance of serious harm because he has borrowed money from a loan shark or unregistered money lender.
The applicant claims he cannot return to Vietnam because he wishes to remain and work in Australia. Having arrived in Australia as an overseas student and moved to WA for work, he fell into the wrong crowd and was led down the criminal path. He claims, and I accept, that he deeply regrets his actions. He wishes to have the chance to study again in Australia and does not want to return to Vietnam as a disappointment to his family. He claims that if he returns, he will be discriminated against by his family.
The discrimination the applicant claims he will experience is rumours and negative things being said about him. He claims that when negative comments were posted about him whilst he was in prison, his parents got sick and did not eat for a month. He denies being dishonest or a thief and claims he has morals. I accept that the applicant is not a dishonest person or a thief. I accept that he made a mistake and has rehabilitated himself. I accept that his expression of regret and remorse is genuine.
The applicant wishes to live in Australia legally, work legally, and pay tax. He wishes to contribute to the community and become a good person. He claims, and I accept, that he spent a lot of time in custody working on rehabilitating himself.
I explained to the applicant that based on the above, he did not appear to satisfy the criteria for a protection visa and, in particular, that he did not appear to face a real chance of serious harm or a real risk of significant harm. In response, the applicant claimed that in modern society, mental harm arising from negative comments or discrimination on social media can be more dangerous than physical harm. He claims the consequences can affect young people’s lives and lead to serious negative behaviours. He referred to his experiences in custody, where he observed young people who committed crimes because of online abuse. He claimed that the associated mental harm from online abuse can lead to self-harm or even suicide. That said, he did not expressly claim that he would self-harm or take his own life.
DOES THE APPLICANT MEET THE REFUGEE CRITERION?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[15]
[15] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
Loan shark claims
I do not accept that the applicant faces a real chance of harm because of his claims to have borrowed money from a loan shark.
The applicant was, however, vague about the content of what was said, be it in person or on social media. The applicant has not provided any documentary evidence of the comments to which he has referred that were made on social media. However, I am prepared to accept that the applicant would face ridicule and negative comments from family members and friends based on his offending in Australia and that those comments may occur in person and on social media.
Section 5J(5) provides that the following are instances of serious harm: a threat to the person’s life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and a denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
I accept that the applicant has been called a thief on social media and that the imputation that he is a thief and is dishonest is upsetting for the applicant. I also accept that some of his family have said negative things about the applicant and have 'turned their backs on him'. I accept that he has disappointed his immediate family immensely, particularly his mother. However, I am not satisfied that the types of harassment, discrimination, negative comments, and similar adverse statements and behaviour the applicant has claimed he will experience involve a real chance of serious harm. Whilst I accept, as a general proposition, that non-physical harm can amount to serious harm, I am not satisfied that level is reached in this case. I am not satisfied that there is a real chance that the behaviour that the applicant fears will be of such frequency, intensity or severity as to involve serious harm.
I have also considered whether the presence of such comments on social media leads to a conclusion that there is a real chance of serious harm, for example, from authorities. I am, however, not satisfied that the presence of such comments on social media would, without substantially more, result in a finding that there was a real chance of serious harm.
I do not accept the submission that, as a young person, the applicant is more vulnerable to non-physical harm than others. Whilst I accept that comments made, whether to the applicant or on social media, would no doubt be upsetting for the applicant, I am not satisfied that there is a real chance they would involve serious harm in the forms of mental harm or anguish.
I have also separately considered whether the effect of the behaviour feared by the applicant upon him would involve a real chance of serious harm. Section 36(2)(a) of the Act is not directed to whether a person suffers from an illness. Such an illness would not, without more, involve systematic and discriminatory conduct. A claim that an application would suffer depression on return does not satisfy the refugee criterion in s 36(2)(a).[16] I am not, however, satisfied that when making negative comments to, or about, the applicant on social media or otherwise, any person would intend to inflict mental harm upon the applicant or would otherwise be reckless or indifferent to whether their comments would cause such harm.
[16] CSV15 vMinister for Immigration and Border Protection [2018] FCA 699 at [30]-[31] (Collier J).
Returnee / failed asylum seeker
I have also considered whether the applicant would face a real chance of serious harm as a failed asylum seeker, a returnee to Vietnam or being returned to Vietnam as an unlawful non-citizen.
Migration has been a feature of Vietnamese life for decades and is common and encouraged by the government.[17] The applicant has not been involved in people smuggling[18] and being a failed asylum seeker is not generally stigmatised in Vietnam.[19] Returnees, including failed asylum seekers, typically face a range of difficulties upon return, including unemployment or underemployment and challenges accessing social services.[20]
[17] 2022 DFAT Report, [5.32].
[18] cf 2022 DFAT Report, [5.30].
[19] 2022 DFAT Report, [5.34].
[20] 2022 DFAT Report, [5.32].
However, the applicant has demonstrated an ability to integrate into Australian society and obtain employment. He will have some, even if limited, family support. His parents and brother both remain in his hometown. There was no claim or evidence that his household registration had ceased, that he feared not being able to access social services on return or that he feared that he would face unemployment or being unable to support himself.[21] The applicant has managed to integrate into Australia on his own, and I am not satisfied that he will be unable to overcome any difficulties he might face if he returns to Vietnam.
[21] 2022 DFAT Report, [5.32].
I do not accept that the applicant faces a real chance of serious harm arising out of the duration of his time in Australia, being identified as, or perceived to be, a failed asylum seeker, returnee to Vietnam or a person being returned as an unlawful non-citizen.
Criminal convictions
Other than societal disapproval and discrimination from the applicant's family, the applicant did not claim that he would be subjected to double jeopardy or face harm because of his criminal convictions. Nevertheless, I have considered whether the applicant would face such harm. Having done so, I am not satisfied that there is a real chance of the applicant being charged by, or facing any harm from, Vietnamese authorities on account of the offences that he has committed in Australia and has completed his sentence for.[22] I am not satisfied that the applicant faces a real chance of serious harm on this basis.
[22] 2022 DFAT Report, [5.11].
Cumulative consideration
I have also considered the above matters cumulatively. Having done so, no feature of any of the above claims, when considered cumulatively with one or more or all the other claims, would lead me to conclude that the applicant has a well-founded fear of persecution. I am not satisfied that any of the applicant's claims, individually or cumulatively, involve the applicant facing a real chance of serious harm, having regard to the non-exhaustive examples of serious harm contained in s 5J(5) of the Act to which I have already referred.
For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. The applicant is not a refugee within the meaning of s 5H(1) of the Act. On that basis, the applicant does not meet the criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm.[23]
[23] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[24] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).[25]
[24] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
[25] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
I have already found that the applicant does not face a real chance of serious harm. Relying on my findings above, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm, as that term is exhaustively defined in s 36(2A) of the Act. Whilst I accept that the applicant is genuine in his desire to continue to build a life in Australia, contribute to society, further his rehabilitation and does not wish to return to Vietnam, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm. The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
For the reasons above, I do not accept that the applicant is owed complementary protection or otherwise meets the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not 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) by 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 s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Fraser Robertson
MemberATTACHMENT – 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
0
8
0