2200214 (Refugee)

2200214 (Refugee) [2022] AATA 3734 (23 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Guilda Alakabani (MARN: 1792756)
CASE NUMBER:  2200214
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Luke Hardy
DATE:23 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2022 at 3:06pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm after borrowing money for wife’s study in Australia – credibility – vague and inconsistent claims and evidence and no documentary evidence – voluntary return with no harm – money sent to children rather than to lenders – no harm to children – delay in applying for protection – applied after arriving as dependant on wife’s student visa, divorce, imprisonment and immigration detention – applicant’s responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Vietnam. He arrived in Australia [in] July 2014 as a dependant included in his wife’s student visa. He returned to Vietnam [in] January 2018, on a direct flight from Sydney to Ho Chi Minh City. He re-entered Australia [in] March 2018. At some stage, [the applicant]’s marriage ended. His student visa ceased on 12 May 2018 and [the applicant] held a series of bridging visas until 1 July 2020. He then became an unlawful non-citizen. Meanwhile, [the applicant] was jailed for an offence related to illicit cultivation of cannabis. On completion of his sentence, he was released into immigration detention at [an] IDC.
[The applicant] lodged a PV application on 20 October 2021 and received a concomitant bridging visa. At the time, he declared himself “divorced.” The delegate refused to grant the visa on 20 December 2021 and [the applicant] then sought review by this Tribunal. The matter was constituted to me. I find the review application valid.
[The applicant], who is still in detention, appeared before the Tribunal by MS teams on 18 August 2022 to give evidence and present arguments. The Tribunal hearing was facilitated by an interpreter in the Vietnamese-English medium.
[The applicant] is represented by an adviser who did not attend the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
In his PV application, lodged through his current adviser, a migration agent, [the applicant] claimed he left Vietnam with his wife so that she could study in Australia. He claimed to have borrowed a large amount of money from his relatives before leaving Vietnam and not to have returned any of it. He claimed he was misled by friends in Australia, after his divorce, into doing “illegal things” that led to prosecution here and a custodial sentence. He claimed he was scared to go back to Vietnam as he was being threatened by his relatives. He said he would not be able to avoid them because they “have strong connection[s] in the country.” He claimed that as news of his conviction here spread back to his relatives they became angry at his having done “shameful things” and his failure to repay them in the many years since he came to Australia. He claimed that they had threatened to kill him if he ever “set foot” back in Vietnam, although he did not provide any evidence to support this particular claim. [The applicant] also claimed that the Vietnamese authorities would not be able to help him as there would be many ways for his relatives to get away with harming him.
For the purposes of this review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision which summarises evidence he gave to the delegate at an interview in November 2021. At the interview, [the applicant] reportedly told the delegate that his original PV application was completed by a “friend” who provided erroneous information because they were only allowed five minutes to talk together, this erroneous information somehow having passed through the adviser in the completion of the application. He also evidently told the delegate that his creditors had threatened at some stage to harm his children in Vietnam if he did not continue to meet his repayments including interest:
At interview the applicant subsequently claimed that whilst he had borrowed some money from family prior to leaving Vietnam, they understand and are not angry; but he also borrowed from “people I know”, then claiming that these people were money lenders. He claimed that he fears returning to Vietnam because his life may be in danger because he cannot pay his debts to money lenders, who he claims have threatened to harm him and his children. At interview the inconsistencies between his written claims and the claims stated at interview were discussed with the applicant, and he referred to there not being good communication between him and his friend, and his friend not fully understanding what he meant to say. He claimed that what he said at interview is correct. Whilst it is noted that his application form indicates that he received assistance from a migration agent in completing his form, at interview his migration agent referred to not having the opportunity to discuss things with the applicant as she was still waiting for an appointment with [the correctional centre], and I consider it is plausible that the claims were compiled via a friend. Given the applicant’s present circumstances (incarcerated in a correctional centre in relation to criminal charges), I am willing to accept that completing his application may have been challenging, and may have led to difficulties in accurately compiling his protection claims. Accordingly, I have not drawn any adverse inference from the applicant changing his claims at his PV interview, from what was written in his PV application.
That said … at interview the applicant had difficulty in recalling details and providing persuasive testimony in relation to money he borrowed, who he borrowed from, the repayment terms, and how much he owes. When questioned as to how much money he borrowed, the applicant initially indicated that he borrowed a lot of money and that he can’t remember how much, before subsequently claiming that he borrowed nearly 1 billion Vietnamese Dong, which he claimed converted to nearly A$50,000 at the time. At interview the applicant referred to borrowing from [“] people I know [’’], indicating that most of them were friends, but when asked how many people he borrowed from, he indicated that he cannot remember exactly, but that it was at least three people. The applicant provided names for three people he claims to have borrowed from, however after initially describing them as friends, the applicant subsequently indicated that they are money lenders that he knew a little bit. When asked when he was expected to repay the money to the money lenders by, he replied that he cannot calculate, before indicating that it was at least 5 years. When questioned as to how much he has repaid to the money lenders, he referred to occasionally paying interest, and when further clarification was sought as to how much in interest he has repaid, he indicated that he cannot work out how much he has paid so far, and that he cannot pay off the interest. When subsequently asked to estimate how much he has repaid to the money lenders, the applicant indicated that he thinks that he has paid a little bit more than A$30,000, but when asked how much he currently owes to the money lenders the applicant indicated that he cannot work out how much his debt is at the moment ...
Information [located by the Department] indicates that the applicant has remitted in excess of A$80,000 to Vietnam ... When questioned at interview about his substantial remittances to Vietnam, the applicant claimed that he sent most of the money to support his two children in Vietnam, and that he had only paid interest ...
The applicant arrived in Australia in July 2014, and subsequently lodged a protection visa application in October 2021, after being remanded in a correctional facility after being charged with multiple criminal offences, and some 15 months after his last Australian visa expired in July 2020. This is despite the applicant claiming at interview that money lenders have threatened him since 2016, and that he has been threatened ‘many times’, estimating that he has been threatened 20-30 times, most recently about 6 months ago. In considering the timing of his lodgement of a protection visa application I have noted relevant Australian case law. In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. Additionally in Selvadurai vs the Minister for Immigration and Ethnic Affairs (1994) it is stated in regard to a delayed lodgement of a refugee application: "In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material”. At interview the applicant was questioned in relation to his delayed lodgement of a Protection visa application. He claimed that he still hoped that he could keep working and pay (his debt), but in the last 2 years he couldn’t work due to COVID and the bushfires, and he was also arrested, and he realised he could not pay them. Whilst I accept that the circumstances occurring in the preceding two years may have affected the applicant’s income in Australia, it is noted that the applicant claims to have been threat[en]ed since 2016, and consider it is likely he would have nevertheless sought protection significantly sooner …
It is noted that after arriving in Australia in 2014 the applicant returned to Vietnam in 2018, and remained there for more than a month. This is despite the applicant claiming to have been threatened by money lenders since 2016. At interview the applicant was questioned in relation to why he was willing to risk travelling back to Vietnam in 2018 if he feared money lenders. He claimed that he wanted to visit his children, and that he wanted to see the money lender and talk to them about the debt and pay them a little bit ...
Evidence to the Tribunal
At the Tribunal hearing, [the applicant] told me he has three children in Vietnam, one of whom is still a student. He told me he used to send her money for her university tuition before he went to jail here. From what he told me, his children, at least two of whom are adults, are getting on with their lives in Vietnam.
I asked [the applicant] when he first thought he needed to apply for protection in Australia and he said he first thought about it when he was arrested in 2021. He said the reason why he applied for a PV was that he was in debt in Vietnam and could not work to repay what he owed. I asked [the applicant] why being unable to repay a personal debt should be a matter for international protection, and he said that when he found he could not repay his debt he was put under pressure and threats of violence.
[The applicant] told me he borrowed the money he borrowed to raise funds to accompany his former wife on her student visa. He said he did not receive help from siblings, family or any other relatives towards the cost of coming to Australia.
[The applicant] said he borrowed Đ1,000,000,000, or around A$50,000 to come here. He said he borrowed from three professional lenders. He gave me three names for the lenders, saying they lent Đ400,000,000, Đ300,000,000 and Đ300,000,000 respectively.
I asked [the applicant] if he could provide any documentary evidence of the loans having been made. He said there was no evidence, there only having been handwritten notes that he signed and gave into the hands of the lenders.
I asked [the applicant] if any of the lenders had set conditions on their loans, or demanded collateral as security. He said they had all lent the money they lent without imposing any security. I put to him that this seemed odd because each amount lent on its own would have enabled him to flee Vietnam to paces unknown leaving the lenders out of pocket and unable, potentially ever, to recover anything. In reply, [the applicant] said that for his part, he did not originally ever plan never to return to Vietnam. I put to him that the point of the concern I was raising with him was that, in his evidence, all three lenders who, as he had indicated to me, he did not know except as potential lenders, apparently trusted him to repay the loans merely on whatever financial terms they set. In reply, he said they all imposed substantial interest. I put to him that it still seemed odd that, on his evidence, they did not impose any conditions to ensure he met the interest terms they imposed. In reply, he said that all three lenders had the potential to harm and even kill his children if he did not keep up with the required interest payments and that this was why they did not impose any other security or collateral. Then he said that, whereas no such threats were explicitly communicated to him at the time he borrowed even since then, he was clearly left to understand that this was the implicit risk of not meeting repayments.
I then put to [the applicant] that some eight years after he borrowed the money, and after several years of not being even able to work to help meet repayments, his children all continued apparently to have been unharmed, as if no default on any of the loans had ever occurred and, perhaps, as if no such loans had ever been made. In reply, [the applicant] said that at the moment the situation of his children is stable although for how long that would continue to be the case he could not predict. He went on to say that he had repaid some money prior to 2018. I note that this still left the lenders some four years to have grown impatient with him and to have escalated pressure, say, in relation to his children in Vietnam. I asked [the applicant] if he could tell me how much of the loans he had repaid and he said he could not because all of his own notes about the loans had been confiscated. This was a new claim, apparently unsupported.
Initially, [the applicant] said he sent his repayments to account names and numbers provided to him by the lenders. Later, when I put to him that the delegate had evidently seen information to the effect that he had sent A$80,00 directly to his children since 2014, he said he said that most of the money was to repay his debts. I put to him that the delegate was talking about $80,000 sent to his children directly, rather than to account names and numbers provided to him by the alleged lenders. In reply, he said he could not remember because he had no logbook and also because of the pressure of living in detention for several months.
I reminded [the applicant] about his originally having told the Department that he had borrowed from “friends” and family, before saying that these friends were loan sharks who he did not really know, and then telling me he borrowed entirely from the three loan sharks, with none of his relatives contributing at all. In reply, he said that one of the three professional lenders was a family member. This struck me as being a completely new claim. [The applicant] also said that the when he had told me that none of his relatives has supported his travel to Australia he had merely meant that none of them had give him social support. I put to him that the issue of “support,” as discussed earlier in the hearing, had been wholly within the context of financial support.

[The applicant] said he will receive no help or protection from Vietnamese authorities in the matter of threats associated with the money he borrowed.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] 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. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
[The applicant]’s claims only correspond with s.5J(1)(a) of the Act insofar as he clams his family will discriminate against him due to his criminal profile, “people with criminal records” being a “particular social group” for the purposes of this decision. However, I am not satisfied, on the evidence before me that the discrimination as described here gives rise to a real chance of [the applicant]’s being persecuted in Vietnam in the reasonably foreseeable future. I am also not satisfied on the evidence before me that other members of society will persecute him for reasons of his criminal profile.
The other claims, being about the loan, have no nexus with s.5J(1)(a) in that none of the five criteria is an essential and significant factor in the harm feared. The claims about the loans are claims about individual criminal harm potentially arising from a failure on [the applicant]’s part to do a particular thing; they are not abbot what he is.
I have taken into account that [the applicant] has spent a substantial period in criminal and administrative detention and I have considered his claim about this potentially causing him some difficulties recalling some facts with consistent accuracy over time. However, I am not satisfied that this or any other factor outside of [the applicant]’s control has prevented him from giving cogent and consistent evidence in this matter.
I am not satisfied that such factors account for [the applicant] being able to borrow such substantial amounts from people who set no conditions as security or collateral and just let him go away, potentially leave Vietnam potentially forever. His claim that he himself originally intended to return does not resolve the concern raised in relation to this issue. [The applicant]’s evidence about the loans has, at least to this extent, an air of unreality about it, particularly since he describes his lenders as being to some extent ruthless.
I am not satisfied that [the applicant]’s children are or have ever been in any potentially relevant danger, even though he says it was clearly left for him to understand that defaulting on any of the loans would endanger their lives. It is, for [the applicant]’s children, as if he never failed to repay his lenders, although he claims he stopped at least four years ago, and perhaps even as if he never borrowed from those ruthless people in the first place. Hence there is another factor of unreality in [the applicant]’s account of his problems.
Whereas [the applicant] might not have had overall control over how a “friend” helped him convey his claims to and through his adviser in the first instance, I conclude on the facts before me that he has still embellished his claims over time. For example, he told me that he borrowed entirely from three professional lenders, and then later described to me, after essentially claiming that no relatives lent him money, how one of the lenders was indeed a relative.
[The applicant]’s evidence about repaying the lenders up to 2018 in sums included amongst remittances sent directly to his children is not consistent with other evidence he gave to me about being required to sent repayments directly to accounts pertaining to the lenders themselves.
Finally, I give some negative weight cumulatively to the long delay in lodging a PV application in this case. [The applicant] claims to have known he was seriously on the wrong side of his creditors from the time of a violent encounter in Vietnam in 2016. He claimed he was unable to repay anything in 2018. Still, he did not seek protection in Australia for a further two to three years. I give some negative cumulative weight to this issue in concluding that [the applicant]’s substantive claims about money borrowed are not genuine.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Vietnam in the reasonably foreseeable future for any reason citied in s.5J(1)(a) of the Act.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Vietnam, I find that Vietnam is the receiving country in this matter.
[The applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have been found in the main to lack credibility and to have failed overall to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Vietnam, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3734

23 August 2022

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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Appeal