2414934 (Refugee) - [2025] ARTA 861

2414934 (REFUGEE) [2025] ARTA 861 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Tam Van Nguyen (MARN: 0743595)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2414934
Tribunal:General Member M Poon
Date:18 March 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review

General Member M Poon

Statement made on 18 March 2025 at 3.31pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – expressed criticism of party leadership in work meeting – reassigned and counselled – fear of arrest and detention – late claim of family violence by ex-partner – unfavourable inference drawn – consent to decision without hearing – responsibility to specify particulars and provide evidence – country information – vague and speculative claims – unhindered departure – no political activity in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(ii)
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Prasad v MIEA (1985) 6 FCR 155
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 (“the Department”) on 22 May 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth)[1].
[1] Unless otherwise stated, all references to legislation are to the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)
The applicant who is a national of Vietnam, applied for the visa on 4 July 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (“AAT”) became the Administrative Review Tribunal (“the Tribunal”). The Tribunal is authorised to continue and finalise any aspect of the review not already completed by the AAT.[2] This decision and statement of reasons is made by the Tribunal.
[2] See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
On 26 February 2025, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The hearing invitation included the following:
Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
The applicant responded to the Tribunal’s hearing invitation with her completed “Response to hearing notice”. That form was signed on 12 March 2025. The applicant marked the box stating:
No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing.
In reply, the Tribunal notified the applicant via email on 12 March 2025, that it had cancelled the scheduled hearing and will proceed to make a decision on the papers as she requested, and that she will be notified of the decision in due course.
The applicant was represented in relation to the review and all communications between the applicant and the Tribunal were done via the applicant’s representative.
Section 106(1) of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”) allows the Tribunal to make its decision without holding a hearing in certain circumstances. Such circumstances include those specified in s 106(3) of the ART Act, namely, when the only parties to the hearing are the applicant and a non-participating party, and the applicant requests the Tribunal to make its decision without the hearing, and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
I am satisfied that the applicant’s request constitutes a request under s 106(3)(b)(ii) of the ART Act.
The issue which requires determination is whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) if returned to Vietnam; and if not, then whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa).
In this case, the issues for determination in the proceeding can be adequately determined in the absence of a hearing. I have before me a copy of the Department’s file, including the applicant’s protection visa application form, the additional one-page document called “CLAIMS”, the delegate’s decision record and the applicant’s submissions to the Tribunal.
I have assessed the materials before me, and I am satisfied that they enable me to determine the applicant’s identity and receiving country, and to form conclusions about whether the applicant meets the criteria for a protection visa in s 36(2), in the absence of further evidence or submissions from her.
BACKGROUND
The applicant’s claims before the Department
The applicant’s claims for protection in her application form dated 4 July 2023 and the additional one-page document called “CLAIMS”, were that:
·She was an employee of a [company] since January 2022. In February 2023, there was a meeting of the company’s employees to discuss the achievements and behaviour of staff under the party leadership. During this meeting, she expressed her criticism of the party leadership and dictatorship, that it narrowed the freedom of employees’ minds and gave favourite awards to the party members and not normal employees.
·As a result, she was accused of being anti-party and had to meet with the party leader weekly, who guided the applicant on the way of the party. The applicant was isolated from her previous duties and tasks and under pressure of the leadership.
·The applicant felt unsafe for her family, including her parents, her brother and her two fatherless children. The applicant obtained a visitor visa to visit her grandmother in Australia.
·The applicant fears arrest and detainment if she returns to Vietnam. There has recently been a small and brief insurrection by a group to attack two village offices in Dak Lak Province to kill some officers. There is a suspicious atmosphere among the community and there are arbitrary arrests.
·People like her cannot easily move to another part of Vietnam as they would be unable to get permission from the local police. If people move without the local police permission, they would be detained by police.
·If she returns to Vietnam she would be suspected of participating in organisations in Australia which promote or campaign against the Vietnam government. In the insurrection referred to above, there were people from foreign countries amongst the arrests. The harm she experienced includes the daily monitoring of her social activities to see if she is a member of any underground group to campaign against the government. She would be mistreated by being isolated from social benefits and would not be allowed to resume employment.
On 20 April 2024, the Department sent the applicant (via her representative) an invitation to provide additional information to address the deficiency in the details of her claims.
The Department did not receive any response to that invitation.
The Department’s decision and reasons
On 22 May 2024, the Department’s delegate found that the applicant’s claims were not credible and therefore, she was not a refugee as defined in s 5H(1) and she did not meet the criteria for complementary protection. Consequently, the Department’s delegate found that the applicant is not a person in respect of whom Australia has protection obligations under either ss 36(2)(a) or (aa) and refused to grant the applicant a protection visa.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36, as well as the Migration Regulations 1994 (Cth) at Schedule 2. An applicant for the visa must meet one of the alternative criteria in ss 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).
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 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, I have taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department, 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.
THE TRIBUNAL’S FINDINGS AND REASONS
There are no apparent concerns with the applicant’s identity. The Department accepted the applicant’s identity, and I too am satisfied that the applicant is a citizen of Vietnam. Based on the information before me, I am satisfied that Vietnam is the applicant’s receiving country. I have assessed her claims against that country.
The issue for determination is whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) if returned to Vietnam; and if not, then whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being returned to Vietnam, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa).
For the reasons set out below, I find that the applicant is not a person in respect of whom Australia has protection obligations.
Consequently, I have concluded that the decision under review should be affirmed.
The applicant’s claims in written submissions to the Tribunal
The applicant’s claims in written submissions to the Tribunal dated 12 March 2025, were that she left Vietnam while there was an insurrection in Dak Lak Province. The security and hard suppression was applied throughout Vietnam. She used to express her criticism against the suppression of the company’s leadership, who then reported her behaviour to the local authority. That is the reason she is afraid of being arrested and detained if she returns to Vietnam. She heard that a former lawyer who criticised the government Court official was sentenced to prison. This is the way to keep the Vietnamese people obedient to what the government communist members want them to do. In Australia, she has witnessed and enjoyed democracy and freedom. That is the reason she applied for a protection visa – to be protected by the Australian government until the date the Vietnamese government might change to democratic and freedom policy.
The applicant also made new claims in her written submissions. These claims were that: she had left the father of her two children because she could not sustain his violent acts; she had to hide from him as he tried to seek her whereabouts before she came to Australia; he pledged to take her life; and if she returns to Vietnam she is at risk of being murdered – it is an occurrence reported in media articles almost monthly.
Does the applicant satisfy the refugee criterion for protection?
The applicant must face a real chance of persecution for one or more of the reasons identified in s 5J(1)(a) to meet the refugee criterion for protection.
The concept of “real chance”, in assessing well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court[3] as a substantial chance, as distinct from a remote or far-fetched possibility. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J.[4]
[3] See Chan v MIEA (1989) 169 CLR 379 at 389
[4] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) at p 171
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Nor is mere speculation or assumption enough to establish a “well-founded fear”.[5] Similarly, 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”.
[5] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
Section 5AAA provides that it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the decision-maker required to accept uncritically, any allegation made by an applicant.[6]
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The applicant had a reasonable opportunity to give the Department and later the Tribunal, details and evidence to support her claims. It is reasonable to conclude that if such details and evidence were available, the applicant would have provided them.
Fear of arrest and detention, monitoring of social activities and obstacle to employment
I accept that the applicant was employed by a [company] and attended a meeting of employees in February 2023, during which she expressed criticism of the party leadership.
However, based on the materials before me and for the reasons given below, her fear that the Vietnamese authorities will arrest or detain her, are not well-founded. Nor is there a logical basis for her fear that the local police in Vietnam will monitor her social activities daily, to see if she is a member of an underground group, or to prevent her obtaining employment or social benefits. The applicant’s fears are pure speculation.
First, there was no evidence from the applicant of her criticisms of the government other than during the February 2023 staff meeting. The applicant was not physically harmed, arrested, or detained for that criticism. Nor was her employment terminated. The consequence for that criticism was that she was not assigned the duties and tasks that she previously had, and she was required to meet the leader on a weekly basis to receive “hard comments”. There was no detail from the applicant as to how long these meetings with the leader lasted, how many meetings or weeks she attended, or what words or phrases were used by the leader in their hard comments. There was also no evidence from the applicant of anyone making threats to specifically arrest or detain her.
Second, the applicant’s ability to leave Vietnam without incident or obstruction is consistent with a finding that she was not a person of interest to, or under surveillance or monitoring by, government authorities.
Third, there is no evidence of the applicant having engaged in any activity while in Australia – including any public criticisms of the Vietnamese government – that would cause her to be a person of interest to Vietnamese authorities presently. While the applicant referred to an insurrection in Dak Lak Province in June 2023 and subsequent arbitrary arrests, there is no evidence before me as to how that insurrection has a direct impact on the applicant, particularly as the applicant’s home – and her family’s home – is in Ca Mau Province, some 536 kilometres away from Dak Lak[7]. There was no evidence from the applicant of arbitrary arrests occurring in Ca Mau. Further, despite claiming to feel unsafe for her parents, her brother and her two children, and claiming that the [company] would certainly have reported her to the local authorities, the applicant gave no details of the authorities monitoring, harassing, or harming her family, or even visiting her family to enquire about her.
[7] >
Fourth, while I accept that a former lawyer who criticised a court official was imprisoned, I note from the news article submitted by the applicant (in support of her written submissions), that the former lawyer was high-profile, formerly the deputy head of the Hanoi Bar Association, and had posted criticisms about the chief justice of the supreme court on Facebook. The applicant did not provide any evidence of her holding a comparable level of influence or prominence, such that she faces a similar threat.
Finally, the applicant’s claim that if she returns to Vietnam she would be suspected of participating in organisations in Australia which promote or campaign against the Vietnamese government, is also highly speculative. As stated earlier, there is no evidence before me, of the applicant having engaged in any activity in Australia that would cause such suspicion to arise.
Fear of violence or murder by ex-partner
In raising this new claim of fear of harm from her ex-partner in her written submissions, the applicant stated that:
I have two children, [ages] years, still living in Vietnam. I left their father because I could not sustain the violent acts of their father, my ex-partner (not married). I had to hide from him as he tried to seek my whereabout before I travelled to Australia. He pledged to take my life.
This is the story I did express in my application for Protection 866. [emphasis added] I would like to mention it here to show that I am a woman who is on the risk if I returned back Vietnam today. The husband or ex husband/partner murdered wife/ex-wife/ex-partner was the medial articles almost monthly.

The applicant’s claims in her protection application form dated 4 July 2023 made no mention of a fear of harm from her ex-partner. The one-page document titled “CLAIMS” mentioned her feeling unsafe for her family “including parents, my fatherless two children and my brother.” However, there was no mention of the father of the applicant’s children or his violent acts. As stated earlier, after receiving the applicant’s protection application, the Department invited the applicant to provide additional information in support of her claims. There was no claim by the applicant of her fearing any harm whatsoever from her ex-partner, before the Department made its decision.
It is also noteworthy that the applicant’s written submissions to the Tribunal contained the following statements:
In Australia, I witnessed and enjoyed the democracy and freedom. That is the reason I applied for the Protection 866 visa to be protected by the Australian government until the date the Vietnam government might change to the authoritarian to democratic and freedom policy. [emphasis added]
The statements in this paragraph are more reliable as they are consistent with the applicant’s original protection application before the Department.
Given the above, and in accordance with s 367A, I have drawn an unfavourable inference to the credibility of the new claims raised before the Tribunal about the applicant’s ex-partner, because the applicant has not given a reasonable explanation for not having raised those claims before the Department made its decision. The applicant’s statement that she expressed her story about her ex-partner in her protection application, is not correct. Furthermore, the applicant has had the benefit of the same representative throughout the entire process, including at the stage of preparing the protection application form dated 4 July 2023. Given the applicant’s claim that the threat of harm from her ex-partner is one of violence and possibly murder, its omission from the original protection application before the Department is not reasonable. Consequently, I find that there is no risk of harm from the applicant’s ex-partner.
Having assessed all the applicant’s claims cumulatively, for all the reasons above, I find that the applicant does not have a well-founded fear of harm and there is no real chance of any harm to the applicant. It follows that the applicant does not meet the definition of refugee in s 5H(1) and thus, is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
The “real chance” test for the refugee criterion is substantially the same as the “real risk” test for the complementary protection criterion[8]. As explained above, I find that if the applicant returns to Vietnam, there is no real chance of any harm.
[8] MIAC v SZQRB (2013) 210 FCR 505; See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19]
For the same reasons, I find that there is no real risk of significant harm to the applicant in the reasonably foreseeable future, if she returns to Vietnam. Therefore, the applicant does not meet the complementary protection criterion in 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 ss 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.
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.
…