2403854 (Refugee)

2403854 (Refugee) [2024] AATA 4210 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403854

COUNTRY OF REFERENCE: Vietnam
MEMBER:Catherine Wall
DATE:7 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 August 2024 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – land confiscation – protests – physical violence – fear of detention – victim of loan shark – period of unlawful residence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
CSV15 V MIBP [2018] FCA 699
EZC18 V MHA [2019] FCA 464
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai V MIEA & ANOR (1994) 34 ALD 346
Subramanian V MIMA (1998) FCA
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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 dependants.
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 on 28 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old citizen of Vietnam. He arrived in Australia [in] November 2022 and applied for the visa on 14 February 2024.The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia. The applicant was not invited to an interview with the department.
The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
He cannot express his views about human rights and democracy in Vietnam.
He worked for a family business and the authorities treated him unfairly.
He has a debt to loan sharks and they have threatened to hurt him if he does not repay them.
There is no protection for him in Vietnam and he cannot relocate. If he returns the authorities will regard him as a spy.
He has had mental health issues.
Evidence at hearing
The applicant told the Tribunal that he was born in Quang Binh Province in Vietnam. His father died when he was aged [age] and his mother and [a sibling] continue to live in Vietnam. At age [age] he commenced work as a seafarer and did this work for one year. He moved to Australia when he was [age] years of age. When asked why he left Vietnam, the applicant said that it was because he was a member of the Catholic community and in 2021 the authorities took away diocesan land to use for their offices. The applicant joined protests against the confiscation of the land and the authorities used heavy weapons against them.
The applicant said that he and his friends were beaten during the protest in the [Town 1] parish tomb area. He protested on 3 occasions. He was beaten at one protest and was able to run away from another. He said that he had bruising and went to the hospital at [a named location] for medication for the pain. Some of his friends were detained by the police however he was not arrested or taken to the police station. The police came to his home a few days after the protest but he was not at home. He mother told him later that the police were looking for him.
The applicant said that he was scared so he hid in other locations. When asked for details, he said that he stayed with friends in Ho Chi Minh City (HCM City) for 3-4 months and worked in [a business]. The police did not locate him while he was in HCM City however he decided to go to Australia as he did not have enough money to live on in HCM City. I asked how he financed his travel to Australia. He said that his mother borrowed [amount] VND[1] from the bank. He did not know which bank. His mother also engaged someone to organise his visa. He said that he travelled to Australia by himself and stayed at his [Relative A’s] home, working with him ‘in [a specified business]’. His [Relative A] lives in Australia [but his wife] lives in Vietnam.
[1] Equivalent to approximately $[amount] AUD at current conversion rates.
I asked the applicant why he waited 16 months to apply for protection. He said that he was arrested in January 2024 and placed in detention and that is when he applied for the protection visa. He claimed that he was unaware that he was unlawful and had no knowledge of protection visas. He had told the Tribunal that his [Relative A] had applied for a protection visa but he did not know the details. When asked when and why his [Relative A] came to Australia the applicant said he did not know. When questioned further, he thought it might be 4-5 years ago. I suggested to the applicant that he would have known about protection visas if his [Relative A] had previously applied for protection. His response was that he only lived with his [Relative A] for a few months.
The applicant was asked if he had assistance completing the visa application. He said that his [Relative A] organised help from someone called [name] and he has no idea what that person wrote on the form.
When asked why he does not wish to return to Vietnam, the applicant said that ‘they will beat him and imprison him’. He said that the police are still looking for him because of the problems with Formosa and the parish land problems. He claimed to be black-listed by the authorities.. As he had not mentioned problems relating to Formosa previously, I asked him for more details. He said that he worked as [an occupation 1] and the Formosa toxic spill contaminated the oceans and killed the fish and [affected their] work and could not eat fish. He protested over one week and was beaten by police.
I noted that the Formosa toxic spill happened in April 2016 and that he would have been [a young age] years old at the time. As he had previously stated that he started work as [an occupation 1] when he was [age], I said that this was inconsistent with his claim that he was [an occupation 1] at the time of the spill. He claimed not to understand the inconsistency. He then said that he protested when he was [age] years of age.
I advised the applicant that I had concerns about aspects of his evidence and I would discuss these with him and give him the opportunity to respond.
Firstly, I observed that he had claimed in his visa application that he feared harm from loan sharks if he returns to Vietnam, yet at hearing he said that his fear related to his political protests and he did not refer to a loan shark debt until I questioned him about his visa application. He said that he did borrow money for his travel to Australia and his mother also borrowed money. He said that he borrowed [amount] VND[2] from a loan shark called [name] in July 2023. His mother borrowed [amount] VND from a bank, also to finance his travel to Australia. I asked about the terms of the loan from the loan shark. He said that he had to pay [amount] VND or [amount] VND interest each month for 2 years. He made no repayments. He said that his mother had not made repayments to the bank and he did not know if the bank has taken any action against her. I asked if he had any evidence that the loan shark was looking for him. He said that his mother told him that they asked her about his whereabouts however he did not say when this happened.
[2] Equivalent to approximately $[amount] AUD at current conversion rates.
I noted that the applicant had submitted a copy of a loan contract to the Department in support of his visa application. This contract states that [Mother Name A] borrowed [amount] VND on 5 October 2023. He said that [Mother Name A] is his mother. I questioned this, given that he had stated in his visa application that his mother’s name is [Mother Name B]. He said that [Mother Name B] is his uncle. I said that it did not appear plausible that his mother borrowed money in October 2023 to enable him to travel to Australia when he had arrived in Australia one year earlier. His explanation was that she had to borrow the money from the bank to repay the loan shark. He said that she has not completely repaid the debt.
I asked the applicant about his health, given he had referred to mental health problems in the visa application. He said that he is not eating much in detention and has lost weight. He was seen recently by a mental health professional however he is not being treated for a mental health condition. He is feeling stressed in detention and his uncle died one month ago.
I explained to the applicant that I had concerns about the truthfulness of his claims as they have changed over time and his oral evidence was inconsistent in relation to the loans and in relation to his involvement in Formosa protests. He said that the loan shark will demand repayment if he returns to Vietnam and the police will beat him and imprison him for his involvement in the protests.
I noted that the applicant had requested that an earlier hearing be postponed because he wanted to organise representation. I had granted a postponement however he remained underrepresented. He said that he looked for someone but was unable to find representation. I am satisfied that he has been given adequate opportunity to organise representation if he wished to do so.
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 (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.
ASSESMENT OF CLAIMS AND EVIDENCE
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[3]
Identity
[3] (1999) 197 CLR 510.
The applicant’s nationality is not an issue. He travelled to Australia on a valid Vietnamese passport and has consistently stated in documentation that he is a national of Vietnam. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Vietnam and I have assessed his claims against Vietnam as his receiving country.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[4] It is important to bear in mind the difficulties often faced by asylum seekers. 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.[5]
[4] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[5] (see 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 to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The applicant remained in Australia unlawfully when his visitor visa ceased [in] February 2023. I find that this demonstrates a disregard for Australian law. He was arrested and placed in immigration detention in January 2024 and it was only then that he applied for protection. I have had regard to Justice Carr’s findings in Subramanian V MIMA[6] that a delay in claiming refugee status is a legitimate matter which the Tribunal is entitled to take into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. I have considered the applicant’s evidence that he did not know about protection visas however I do not accept this claim given his evidence that he came to Australia seeking safety and he was initially living with his uncle who had applied for a protection visa. I find that the delay in seeking protection is inconsistent with the applicant’s claim that he was escaping from harm in Vietnam.
[6] Subramanian V MIMA (1998) FCA. See also Selvadurai V MIEA & ANOR (1994) 34 ALD 346 at 349
The applicant raised entirely new claims at hearing about his involvement in political protests. In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.[7] I do not accept the applicant’s claim that he did not know what was written in the visa application as it was his responsibility to ensure that his claims were truthful. Further, he was in detention when he applied for protection, a result of being found to be in Australia without a valid visa, therefore I reasonably expect that he was aware of the consequences of not adhering to Australian law and the importance of complying with immigration requirements.
[7] Subsection 423A of the Migration Act 1958 (Cth).
Does the applicant meet the refugee criteria?
At the hearing I found the applicant’s evidence to be vague and unreliable. He provided minimal detail about his circumstances and his evidence changed throughout the hearing in response to my questioning. I do not accept that he would not know what bank his mother borrowed from or that he did not know if the bank has taken any action against his mother for non-payment.. I do not accept that he did not know when and why his [Relative A] moved to Australia, [details deleted]. I find it implausible that he was not sure whether the loan shark required repayment of [amount] VND or [half that amount] VND each month. I find that the applicants claims are not credible for the following reasons.
In regard to his claimed involvement in protests about the Formosa toxic spill, country information reports that the contamination happened in April 2016[8] and the disaster provoked large protests against both Formosa and the government in part due to the heavy impact on the livelihoods of the affected communities. While the protests were generally permitted, throughout 2017-2018 several activists were sentenced to lengthy prison terms associated with their protests over the incident. DFAT reported in 2022 that Formosa protests are no longer occurring, at least on a large scale, due to a deal made with the company to provide compensation to victims.[9] The applicant was born on [date] therefore he was [a young age] years at the time of the incident. These facts are inconsistent with his claim that he protested because he was working as [an occupation 1] at the time, as his oral evidence was that he started work as [an occupation 1] when he was [an older] age.
[8] Outrage Over Fish Kill in Vietnam Simmers 6 Months Later - The New York Times (nytimes.com)
[9] DFAT Country Information Report Vietnam, 11 January 2022 at 3.66,
In regard to the applicant’s claimed involvement in protests against the seizure of parish land by the authorities, I acknowledge that such conflicts between authorities and religious communities have occurred regularly in Vietnam. However the applicant raised this for the first time at hearing and his account of the incident lacked detail. I do not accept that he was involved in this protest.
In regard to the claim that he and his mother borrowed money to finance his travel to Australia, I find that the details of the loans changed throughout the hearing. He initially said that they borrowed the money to enable him to travel to Australia. He provided no independent evidence of his debt to the loan shark. The loan contract he submitted is in the name of [Mother Name A]. While he submits that this is his mother, he detailed his biological mother’s name on the visa application as [Mother Name B]. I do not accept his claim that this is actually his uncle. Further, the loan contract is dated 11 months after he travelled to Australia, so could not have been obtained to pay for his travel. I do not accept the applicant’s explanation that his mother borrowed the money to repay the loan shark as he had previously stated that neither he nor his mother had many any repayments on the loans.

I find that the applicant’s evidence was vague and not reliable. Considered in the context of the delay in seeking protection and the introduction of entirely new claims at hearing, I have reached the view that his claims that he fears serious harm in Vietnam are credible.
In the visa application the applicant claimed that he will be considered a spy upon return to Vietnam. He did not raise this as a claim at hearing however I have considered country information in regard to the treatment of failed asylum seekers. Vietnamese officials interview most individuals returning to Vietnam following failed asylum efforts, however treatment is not consistent. According to DFAT, authorities occasionally interview returnees in Vietnam, with questioning usually lasting one to two hours, aiming to gather information on potential involvement in illegal activities. Despite this, some returnees have been detained for multiple days or recalled for further questioning.[10] The applicant’s evidence is that he left Vietnam lawfully and has been out of the country for less than 2 years. As I do not accept that the applicant was a political dissident, I do not accept that he will be regarded as a spy. I accept that he may be subject to routine questioning upon return however I do not find that this amounts to serious harm.
[10] 'DFAT Country Information Report: Vietnam’, 11 January 2022, at.5.30.
Having considered the available evidence, I make the following findings:
I do not accept that the applicant was involved in protests in 2016 in response to the Formosa contamination and I do not accept that he was questioned and beaten for his involvement in the protests.
I do not accept that the applicant was involved in protests in 2021 against the seizure of Catholic parish land by authorities. I do not accept that the applicant was questioned and beaten for his involvement in the protests.
I do not accept that the applicant borrowed money from a loan shark and that his mother borrowed money from a bank in order to finance his travel to Australia.
I do not accept that the applicant fears harm as a result of a debt to a loan shark if he returns to Vietnam.
I do not accept that the applicant has a profile as a political dissident or will be regarded as a spy by Vietnamese authorities.
While I acknowledge the difficulties for applicants who are not represented, it is ultimately up to the applicant to provide sufficient evidence to establish his claim. In this case I find that the applicant’s vague and shifting account of his circumstances in Vietnam is not reliable and lacks plausibility.
The applicant stated that he is stressed and finding it difficult being in detention. He has been assessed by a mental health professional while in detention. He has not submitted that he has a mental health diagnosis or is being treated for a mental health condition. While I acknowledge that his current situation is difficult for him and he is stressed about the possibility of returning to Vietnam, the Australian courts have held that an applicant’s mental illness will not on its own satisfy the requirements of s 36(2)(a) or (aa) of the Act, because both ‘serious harm’ and ‘significant harm’ refer to acts perpetrated by others which cause the non-citizen to suffer harm.[11]
[11] CSV15 V MIBP [2018] FCA 699; EZC18 V MHA [2019] FCA 464.
Having considered the applicant’s claims individually and cumulatively, I do not accept that he has a well-founded fear of persecution because he has a debt to a lender or because he was involved in protests against Formosa or because he will be considered a spy or because he participated in protests against acquisition of church land or for any other reason. Therefore I find that the applicant does not satisfy the criterion set out in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
I have considered whether there are 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 the applicant will suffer significant harm of any kind.
Significant harm is exhaustively defined in s.36(2A) of the Act. 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. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34). A real risk or a real chance is one that is not remote or insubstantial or a far-fetched possibility.
For the reasons given, I do not accept that the applicant borrowed money from a loan shark. I do not accept that he was involved in protests in response to the Formosa contamination and I do not accept that he protested against the seizure of parish land by Vietnamese authorities. It follows that I do not accept that he holds anti-government views or has a profile with the Vietnamese authorities such that he faces significant harm upon return to Vietnam. I also do not accept that he faces significant harm from a money lender. I do not accept that he will be regarded as a spy.
I acknowledge that the applicant is stressed however I am not satisfied that stress amounts to significant harm as defined in s 36(2A). As previously discussed, an applicant’s mental illness will not on its own satisfy the requirements of s 36(2)(a) or (aa) of the Act,
As I have rejected the applicant’s claims, I am not satisfied that there is a real risk the applicant will suffer significant harm from the government or from a money lender or because he will be regarded as a spy or for any other reason if he is removed from Australia to Vietnam now or in the reasonably foreseeable future. Accordingly I find that the applicant does not satisfy s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Wall
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.
…

[2024] AATA 4210

7 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction