2319665 (Refugee)
[2025] ARTA 1079
•31 March 2025
2319665 (REFUGEE) [2025] ARTA 1079 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2319665
Tribunal:General Member S Waring
Date:31 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 31 March 2025 at 10:44am
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – opposition to the government – environmental protests – detention of family members – fear of killing – physical assault – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any 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 14 November 2023 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 5 July 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
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.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 29 January 2025 to give evidence and present arguments. The applicant was not accompanied by his authorised representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
BACKGROUND
The applicant is [an age]-year-old male born in Nighe An, Vietnam where he lived until coming to Australia on a student visa [in] June 2013.
The applicant settled in Melbourne before moving to Queensland in or about October 2015.
The applicant works as [an occupation 1] and provides financial support for his sons [named].
On 5 July 2023 the applicant applied for protection and separately for permission to work on his bridging visa.
Evidence before the Department and the Tribunal
No interview was offered by the Department prior to the delegate making the decision to refuse the protection visa application.
Materials before the Department included a bridging visa application (seeking permission to work) submitted by the applicant on 5 July 2023.
The evidence taken into account by the Department included:
·the applicant’s protection visa application.
·supporting documents including personal identifiers sighted by the Department as part of an identification test.
In addition to the above documents, a movement record of the applicant’s visa history and entry into Australia is before the Tribunal.
The applicant’s partner attended at the Tribunal on the day of hearing. The applicant confirmed that he would not be presenting witness evidence from her.
Following the hearing, the applicant submitted a medical certificate dated 22 November 2022.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided a copy of the biodata page of his Vietnamese passport to the Department as part of his protection visa application. The delegate accepted that the applicant is a citizen of Vietnam and there is no information before me to the contrary. I find that the applicant is a citizen of Vietnam, and that Vietnam is his receiving country for the purposes of assessing his claims for protection.
Assessment of claims made in the visa application
The protection visa application set out the applicant’s claims (summarised)s as follows:
·He was harmed in Vietnam when some people tried to kill him and his family.
·He tried relocating in Vietnam but the assailants found him and hit his father.
·He fears for his safety and fears persecution if he returns to Vietnam.
·He believes he will be killed if he returns to Vietnam.
·The authorities in Vietnam did not help his family.
Evidence at Hearing
The applicant told the Tribunal that he prepared the content of the protection visa application himself. He drafted the text of his claims in Vietnamese and a friend translated the text into English. The applicant stated that he then entered the English text into the digital application form.
When applying for protection the applicant stated “I asked to be allowed to stay in Australia to help my partner and also not to face all the risk if I had to return to Vietnam.”
In order to explain the risks he believes he will face in Vietnam, the applicant asked the Tribunal if he could tell a ‘long story’ narrative. The Tribunal agreed and the applicant disclosed events (and alleged persecution) involving a person in Vietnam he referred to as his father-in-law. The applicant stated:
“In 2014 my wife’s family who are Catholic participated in the demonstrations against Formosa. After that my wife’s family are listed as people who are against the government in Vietnam. My father-in-law had been assaulted and arrested twice and been maltreated in prison.”
The applicant referred to his partner as his wife when giving evidence. The protection visa application (of 5 July 2023) states that the applicant has never been married and the applicant did not submit documentation of a subsequent marriage.
The applicant told the Tribunal about his father-in-law’s experiences in Vietnam including:
· taking part in a protest against Formosa in 2014.
· being assaulted, detained twice and maltreated by Vietnamese authorities.
· receiving one or more threatening letters.
· declining health following thesecond detention.
· his death in 2024.
The applicant believed there had been one or more threatening letters sent to his wife’s family. He had not seen the letter/s and had learned of them (and the father-in-law’s experiences) from his wife. He understood that the letter/s were intended to dissuade the father-in-law from further activities relating to Formosa. The applicant told the Tribunal “I don't know exactly the content, but it's around like saying...like to address to my father-in-law saying that if you continue with the protest and if you don't follow the orders, then I cannot guarantee the well-being of your family” .
It was the applicant’s submission at hearing, that the fear of harm in Vietnam he now feels is directly related to the experiences of the father-in-law and the threatening letter/s.
The applicant made submissions to the Tribunal that participation by the father-in-law in demonstrations in Vietnam could have repercussions for his safety and the safety of his wife and children if he (or they) returned to Vietnam.
When returning to the claims made in the protection visa application, the Tribunal observed that the applicant had stated his fear of returning to Vietnam was based on past physical harm (and attempted killings) that he and his father had suffered. The applicant had stated that his past fear was such that he moved to a different city.
The Tribunal asked the applicant to elaborate on the protection claim that “they came and hit my father.” The applicant responded “I have no answer to that.”
The Tribunal asked the applicant whether his father had ever suffered persecution, harm or threat in Vietnam. The applicant responded “I don’t want to answer that.”
The Tribunal asked the applicant whether he moved to a different city in Vietnam because he was frightened people could find him. The applicant responded “I cannot remember.”
In relation to the applicant’s ‘well-founded fear’ claimed in the protection application, the applicant made no submissions to the Tribunal at hearing that relied on the factual foundation of his father being hit, him moving to a different city out of fear or his family escaping any attempt “by some people [who tried] to kill me and my family”.
In relation to his financial support since finishing his studies in Australia, the applicant told the Tribunal that he had benefitted from assistance from strangers who had allowed him to live with them in Melbourne. He had lived rent-free with an ‘auntie’ when he moved to Queensland. Family in Vietnam would send him money and he occasionally worked at restaurants operated by his friends.
The Tribunal heard that the applicant and his young family lived rent-free in the homes of three friends for a ‘few years’.
The applicant stated that he has been working as [an occupation 1] since early in 2024. His wife is working and his family is now financially stable.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Assessment of claims in the visa application
As observed above, the applicant claims (in the protection visa application) to fear harm, if returned to Vietnam, from some people who had tried to kill him and his family and had hit his father. The Tribunal considers these assertions (which were before the delegate) to be the applicant’s ‘original claims’.
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims.
I accept the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 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.
At hearing the applicant was unwilling to confirm key statements he had made in the protection visa application in relation to the original claims. The applicant did not give oral evidence that detailed or supported assertions made in the protection application that:
·some people came and hit his father.
·his father suffered harm in Vietnam.
·he moved to a different city in Vietnam because he was frightened people would find him.
At hearing the applicant did not submit to the Tribunal that he fears, if returned to Vietnam, he would be killed or harmed by the people who had hit his father and tried to kill him and his family.
The Tribunal finds that, in respect of the applicant’s original claims to fear returning to Vietnam, credible and plausible evidence has not been provided. The Tribunal does not find that the applicant’s factual assertions in the protection application have been made out.
Based on the available evidence, the Tribunal does not accept the original claims that:
·some people tried to kill the applicant and his family.
·the applicant moved to a different city in Vietnam because he was frightened people would find him.
·Some people hit the applicant’s father.
·the applicant fears for his safety and fears persecution if he returns to Vietnam.
·the applicant believes he will be killed if he returns to Vietnam.
Assessment of the new claim
In evidence that does not relate to the factual foundation of the original claims, the applicant spoke to the Tribunal about events (and alleged persecution) of a person in Vietnam he referred to as his father-in-law.
The applicant submitted to the Tribunal that participation by his father-in-law in demonstrations in Vietnam could have repercussions for his safety and the safety of his wife and children if he (or they) returned to Vietnam.
The applicant stated that, because his wife’s family had been listed as people who are against the government in Vietnam (and his father-in-law’s experiences of assault, maltreatment in detention) he fears the same “situation will also happen to me and I’m very scared because of that worry.”
The Tribunal considers that this submission raises a new claim.
The Tribunal queried with the applicant why the claim involving the father-in-law’s experiences had not been brought to the attention of the delegate. The applicant responded “It's only recently that I think about it and then that's why I told you now… when I applied for the protection visa, I didn't think about [that reason], the extent of the [Formosa demonstration]. It's only recently now that I was thinking about that.”
Following the hearing, the applicant submitted a medical certificate (22 November 2022) stating:
“This letter is to confirm that [the applicant], who suffers from mild memory loss since after having a booster COVID vaccination. He is on investigation for his condition.”
The medical certificate documented the applicant’s mild memory loss more than 7 months prior to the protection visa application being submitted on 5 July 2023.
On 24 August 2023 the Department wrote to the applicant inviting him to provide any additional information he would like considered, using his ImmiAccount or by mail.
It was open to the applicant to inform the Department of the new claim (and have it considered by the delegate) up until the refusal decision was made on 14 November 2023. As such, there was a 12 month period (from the date of the medical certificate to the delegate’s decision) during which the applicant could have turned his mind to his fears and his father-in-law’s experiences and informed the Department about them.
The applicant was unable to disclose the dates during which his father-in-law was last detained. When the applicant recalled the unfortunate event of losing a child to miscarriage in or about 2021, he was able to estimate that the events took place around that time. The applicant stated that his wife had, at that time, been very stressed by what was happening with her parents. The applicant was able to confirm the likelihood of the events having occurred in 2021 because he knew he had decided to move to a different address around that time as he was afraid that someone might find them.
The Tribunal is satisfied, on the applicant’s evidence, that the events described in the new claim occurred (in or around 2021) prior to the applicant lodging his protection visa application.
Based on the available evidence (and given the applicant’s submission that he is very fearful of returning to Vietnam due to his father-in-law’s experiences) the Tribunal does not find that mild memory loss diagnosed in November 2022 provides a reasonable explanation for the applicant’s failure to disclose the new claim and evidence to the Department during the ensuing 12 months.
The Tribunal does not accept that the applicant has provided a reasonable explanation for failing to raise this new fear and/or his father-in-law’s experiences in his protection visa application or in a response to the Department’s letter.
Application of s 367A of the Act
In s 367A the Act stipulates that if the applicant raises a claim or presents evidence that was not presented before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
As set out above, the Tribunal is not satisfied that there is a reasonable explanation for the applicant’s failure to provide the new claim and evidence prior to the making of the primary decision. Where no reasonable explanation is provided, s 367A of the Act requires an unfavourable inference to be drawn regarding the credibility of the new claims and evidence and, for the reasons stated above, the Tribunal applies such an inference in this case.
As a result of the adverse inference (per s 367A), the Tribunal does not accept as credible, claims that:
·the family of the applicant’s wife was listed in Vietnam as being anti-government.
·the family of the applicant’s wife received threats relating to the father-in-law’s participation in demonstrations.
·the applicant had a father-in-law in Vietnam who was assaulted, arrested twice and maltreated in prison because he had participated in demonstrations.
·the applicant fears he will be subject to threats or experience the same maltreatment as his father-in-law, if he returns to Vietnam.
·the applicant fears returning to Vietnam because of risks or threats made involving his wife’s family.
·the applicant fears returning to Vietnam because of his father-in-law’s experiences.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The issues in this case are whether there is a real chance that, if the applicant returns to Vietnam, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
In determining whether the applicant engages Australia’s protection obligations, it has been necessary to make findings of fact (above) on relevant matters involving an assessment of the credibility of the applicant’s claims.
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 applicants in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Well Founded Fear
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the applicant’s evidence at hearing, and the findings above concerning the original claims, the Tribunal does not accept that the applicant faces a real chance of harm (or that he holds a genuine fear of harm) from people who tried to kill him and his family if he returns to Vietnam.
As regards the new claim submitted by the applicant, the Tribunal does not accept as credible, the applicant’s evidence that he fears returning to Vietnam because of his father-in-law’s experiences. Applying s 367A, the Tribunal applies an unfavourable inference regarding the credibility of the applicant’s evidence supporting this claim.
Based on the accepted evidence, the Tribunal finds that the applicant does not meet the subjective requirement in s 5J(1)(a) or the objective standard in s 5J(1)(b) in respect of either the original or new claims. The Tribunal does not accept that the applicant holds a genuine fear of persecution for any of the reasons the applicant alleges. The Tribunal does not accept that (applying an objective standard) there is a real chance the applicant would face persecution for the reasons he claims.
The Tribunal concludes that the applicant does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee within the meaning of s 5H(1) of the Act. It follows that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
The Tribunal now turns to consider the alternative protection criterion in s 36(2)(aa) of the Act.
Having regard to the findings and observations above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Vietnam, there is a real risk that the applicant will suffer significant harm for any established reason.
The applicant told the Tribunal that his wife and sons have a review application before the Tribunal because their protection application has been refused. As such, the Tribunal finds there to be 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).
For the reasons given above, the Tribunal concludes that the applicant is not a person in respect of whom Australia has protection obligations.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 29 January 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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