1910835 (Refugee) [2023] AATA 3316 (6 August 2023)

Last Updated: 18 October 2023

1910835 (Refugee) [2023] AATA 3316 (6 August 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Ms Kate Khanh Hoang (MARN: 2015332)

Oxford Law Group

CASE NUMBER: 1910835 & 2116793

COUNTRY OF REFERENCE: Vietnam

MEMBER: Andrew McLean Williams

DATE: 06 August 2023

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 06 August 2023 at 9:01pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – street orphan partly cared for by ‘uncle’ – assaulted and robbed by street gangs – unauthorised maritime entrant – fear of harm from gangs, police and authorities – guarded and evasive evidence – religion and political opinion – Roman Catholic and attendance at protests – low profile – Australian citizen partner and child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decision(s) made on 25 January 2018 and on 28 October 2021 by Delegates of the Minister for Home Affairs, refusing to grant the Applicant a Safe Haven Enterprise (‘SHEV’) protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
2. The Applicant - who claims to be a citizen of Vietnam - had originally applied for the visa on 29 December 2016.
3. On 25 January 2018 the first Delegate refused to grant the visa on the basis of the Delegate having concluded that the Applicant was not a person to whom Australia owed any protection obligations under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act, and was not ‘a member of the same family unit’ as a person who holds a protection visa of the same class, such that the Applicant might become eligible for a protection visa under either of s.36(2)(b) or s.36(2)(c). The Applicant filed an application to review the decision of the first Delegate in the Tribunal on 30 April 2019.
4. Subsequently, and because of a Departmental data breach that had occurred whilst the Applicant was being held in immigration detention, the Applicant was permitted to re-apply for a Safe Haven Enterprise Visa. A fresh application, made on substantially the same grounds as the first application, was then lodged on 10 November 2020.
5. On 28 October 2021 the second Delegate determined that the Applicant was not a person to whom Australia owed protection obligations under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act, and was not a member of the same family unit as a person who holds a protection visa of the same class, such that the Applicant might become eligible for a protection visa under either s.36(2)(b) or s.36(2)(c).
6. On 16 November 2021 the Applicant lodged an application for review of the decision of the second Delegate before the Tribunal.
7. The Applicant appeared before the Tribunal on 13 July 2023. The hearing in this matter was conducted as a joint hearing of both applications for review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
8. The Applicant was represented in relation to the review by Ms Kate Khanh Hoang (MARN 2015332) of the Oxford Law Group. Ms Hoang, who is based in Cabramatta NSW, also attended the Tribunal hearing held in Brisbane, yet did so by means of video-link.

CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s.36 of the Act and in 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), s.36(2)(aa), s.36(2)(b), or s.36(2)(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 they are a member of the same family unit as such a person, and that other family member already holds a protection visa of the same class.
10. 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”.
11. A person qualifies as 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).
12. 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.
13. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless still 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’).
14. The meaning of “significant harm”, and the circumstances in which a person will be taken not to face any real risk of significant harm, are then set out in ss.36(2A) and (2B), which are also extracted in the attachment to this decision.

Mandatory considerations

15. In accordance with Ministerial Direction No.84, as 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 (DFAT) expressly for protection status determination purposes.

CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the Applicant is owed protection under the provisions of the Migration Act. For the following reasons, the Tribunal has concluded that the the decision under review should be affirmed.
17. The Applicant - who claims to have received no education whatsoever and to be completely illiterate - arrived in Australia as an unauthorised maritime entrant [in] April 2013. The Applicant arrived with no identity papers, yet claimed to be a citizen of Vietnam, who had been orphaned, at a very young age.
18. The Applicant further claims to have no knowledge whatsoever of his parents, or regarding his date of birth, and says that the name [the applicant], as well as a date of birth of [Date] -as had been specified by him upon his first arrival in Australia -had been assigned to him when he was aged approximately 8-10 years by a man known to him only as ‘Uncle [A]’. Uncle [A] was a man who had assumed some responsibility for the Applicant as well as a group of other street orphans, after Uncle [A] had found them all living together, under a bridge, in Vietnam. The Applicant says that all of the boys in his group had been assigned the same date of birth ([Date]) by Uncle [A], and that Uncle [A] had informed him that henceforth he was to be known by the name [Mr A].
19. Even after meeting Uncle [A] the Applicant says that he continued to live as a street orphan under a bridge in Vietnam, yet that Uncle [A] would look out for him and periodically check in with him to provide food and other necessities. When the Applicant was aged about 12 (his own estimate) Uncle [A] informed the Applicant that it was time for the Applicant to start working, in order to contribute to the costs of his own upkeep. Thereafter the Applicant worked as [an Occupation] on the streets of Saigon.
20. Upon his arrival in Australia the Applicant was interviewed by Officers of the Department of Home Affairs. On the basis that it was perceived that the Applicant was likely older than his claimed birthdate, further biometric analysis was undertaken, after which the Applicant was assigned a date of birth of [Date] by the Department.
21. The only identity documents now possessed by the Applicant are documents that have been issued to him since his arrival in Australia, including a Queensland Driver Licence and an Immigration Status Card. On the basis of those issued documents, and on the basis that the Applicant clearly understands no other language other than Vietnamese, the Tribunal accepts the identity of the Applicant as [the applicant], with an assigned date of birth [Date], and that the Applicant is a citizen of Vietnam.

Applicant’s Protection Claims

22. Originally, the Applicants’ claims for protection were based on the following:
    • - He believes he is a citizen of Vietnam;
    • - He is of Vietnamese ethnicity;
    • - He has no religion;
    • - He has never attended school and he is illiterate;
    • - He is not married and has no children;
    • - He has never known his parents and has no information about them;
    • - He was raised by [Mr A] who had found him on the streets when he was very young. His first childhood memories relate to being raised by [Mr A]. The Applicant estimates that at the time of his being found by [Mr A] he was probably around the age of 8-10. [Mr A] also cared for other boys in his situation;
    • - [Mr A] gave all the boys the same date of birth – [Date];
    • - Initially, Uncle [A] paid for food for the boys. Yet, in about [Year], when the Applicant was about 12 years old (by his own estimate), [Mr A] said that he needed to start working to pay for food. The Applicant then became [an Occupation 1].
    • - Life was very difficult, because he was homeless and an orphan.
    • - The Applicant claims he was forced to leave Vietnam because a street gang would regularly target him and beat him up and take the money he had earned as [an Occupation 1]. The Applicant had tried to complain about this to the police but the police would do nothing. The Applicant also tried to relocate to other parts of the city in order to avoid harm, however the gang would always find him, and would continue to ‘stand over’ the Applicant for money
    • - The Applicant left Vietnam illegally without a passport. The only official document that the Applicant had ever owned was a permit allowing him to reside in a particular area of Vietnam. Yet he destroyed this document when the boat he was travelling on reached [Country]. Somebody on the boat had told him to do that, so he complied.
    • - The Applicant fears being physically assaulted and re-targeted by street gangs in Vietnam because he is an orphan and homeless.
    • - The Applicant fears being physically assaulted or persecuted by the police or other authorities in Vietnam by reason of his having departed Vietnam illegally
    • - The Applicant fears being persecuted in Vietnam by reason of his being a “failed asylum seeker”, and for criticising the Vietnamese government.
23. At the time of the second SHEV application, the Applicant’s claims for protection had been refined somewhat, and now also included the following:
    • - the Applicant is now a practising Catholic;
    • - the Applicant fears that he will be arrested, detained, and harassed because he will be perceived to have anti-Vietnamese government political opinions, because of his activities whilst living in Australia.
    • - The Applicant has spoken up against the Vietnamese government in Australia. He joined protests and activities organised by members of the Vietnamese diaspora in Australia, activities that are viewed as being against the Vietnamese government;
    • - The Applicant fears that the Vietnamese government will not issue the Applicant with a personal identity card, and he will not be able to relocate internally in Vietnam legally.
    • - The Applicant is now in a de facto relationship with an Australian citizen named [Ms B]. The Applicant now also has a child, a boy named ‘[Master C]’, born in [Year] from this relationship.
24. During the Tribunal hearing, the Applicant gave evidence that he paid money to a people smuggler to take him to Australia by boat, travelling via [Country]. The Applicant says that he left Vietnam because life was so hard, and because he was often targeted by street gangs who would assault him, and take the money that he had earned as [an Occupation]. Even after he had tried to relocate to other parts of Saigon the street gangs would still find him and do the same thing. The Applicant said that he had not been religious or in any way politically active when in Vietnam, but has become a Catholic since his arrival in Australia, and has also attended some protest rallies in Australia organised by the local Vietnamese community. The Applicant recalls attending one protest in Brisbane wherein members of the local Vietnamese community were placarding and protesting about [a Vietnamese-related issue]. The Applicant claims to have been filmed by the media during this protest. The Applicant says that he was holding a placard, yet admits he does not know what the placard said, on the basis he is unable to read. The Applicant stated that he had attended other protest rallies at [Suburb 1], and in [Suburb 2], but cannot now recall specifically what these were about. The Applicant denied ever being active on social media. The Applicant told the Tribunal that he fears he will be arrested if he returns to Vietnam.

Relevant Country Information

25. The DFAT Country Information Report (11 January 2022) contains the following especially relevant information in relation to the plight of returnees to Vietnam:

Conditions for returnees

5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.

5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.

5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.

5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.

5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.

5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.

Findings of Fact

26. On the basis of the Applicant’s evidence, the Tribunal accepts that the Applicant is very probably a Vietnamese national, that he may be an orphan, who may be illiterate in consequence of having not received any formal schooling. The Tribunal also accepts that the Applicant worked to support himself whilst in Vietnam as [an Occupation 1]. The Tribunal also accepts that the Applicant departed Vietnam illegally, without a valid passport. The Tribunal also accepts that the Applicant may have attended some protest events whilst living in Australia, and that the Applicant has joined a Catholic congregation since his arrival in Australia.
27. On the basis of the Applicants oral testimony he is clearly not an organiser, or in any way ‘prominent’, nor even especially active in any form of protests in Australia against the Vietnamese communist government, and it appears that the Applicant only occasionally attended these events as a ‘peripheral participant’, primarily for reasons relating to social amenity. The Applicant also denied being in any way active on social media. The Tribunal concludes therefore that the Applicant has not developed any profile that would be of any interest to the Government of Vietnam whilst he has been in Australia and is not likely to be assessed as a person of interest to the authorities in Vietnam upon his return. Even if the Applicant were filmed by the media as a person in the crowd whilst at a protest in Australia the Tribunal concludes this would not be sufficient to give rise to any concern that the Applicant has developed a profile of interest to the Government of Vietnam.
28. Similarly, nothing said by the Applicant in relation to his having joined a Catholic congregation in Australia now gives rise to any basis for suggestion that the Applicant is at risk of persecution in Vietnam on the basis of his religion. The Tribunal notes that Catholicism is one of the officially recognised religions in Vietnam.
29. When asked by the Tribunal for more information regarding the assaults by members of street gangs that he claimed to have been a victim of whilst in Vietnam the Applicants answers were general, and devoid of specific details. Even when the Applicant was asked to provide more detail the Applicant only informed in general terms that he had been assaulted very many times, and complaining to the police in Vietnam was futile. Despite the lack of detail, the Tribunal is prepared to accept that these assaults may have happened. It was put the Applicant that these assaults had occurred several years ago now, and it is unlikely that he would return to work as [an Occupation 1] in Vietnam, given his more recent pattern of work in Australia as [an Occupation 2]. In that context the Applicant was asked to explain why he remained fearful of the risk of further assaults by street gangs. The Applicant responded by indicating that he still remained fearful, but was unable to articulate why. The Tribunal concludes that these attacks were opportunistic attacks on the Applicant as a vulnerable young person working as [an Occupation 1] on the streets. In the Tribunal’s assessment, now that the Applicant is older, and no longer likely to return to work in the context of being [an Occupation 1] on the streets in Saigon the risk of similar attacks in the future reduces appreciably and to the extent that it cannot now be concluded that the Applicant faces a real chance of being targeted for persecution or serious harm at the hands of street gangs. Nor does the Tribunal accept that the Applicant remains at risk of serious harm or persecution on the basis of his being a young street orphan given that the Applicant would now be returning to Vietnam as an Adult, with several years of employment history. The Tribunal notes the fact of extensive open-source information that reveals that Vietnam has a rapidly expanding economy, particularly in the manufacturing sector, and that unemployment in Vietnam is quite low in consequence such that there are many opportunities for employment in Vietnam, even for unskilled workers. The Tribunal notes that Applicant has been working as [an Occupation 2] in Australia and that these skills are likely to afford the Applicant with similar employment opportunities in Vietnam.
30. Overall, the Tribunal considers that the Applicant’s evidence was guarded, and evasive and was intended so as to provide the Tribunal with minimal information going to the Applicant’s circumstances and background in Vietnam. The Applicant was asked by the Tribunal a number of times to recall for the Tribunal his earliest memories in Vietnam, prior to his having met Uncle [A]. Each time when asked that the Applicant avoided the question and only repeated that he had no memories whatsoever, before Uncle [A]. The Tribunal does not accept this as credible, and infers that if the Applicant had met Uncle [A] somewhere between the ages of 8 and 10 years of age as now claimed that the Applicant must have had at least some memories of life in Vietnam prior to that. The Applicants’ representative in submissions dated 4 March 2021 posits the possibility of the Applicant suffering from dissociative amnesia. However, there is no medical evidence before the Tribunal to support that diagnosis, such that the Tribunal rejects that as speculative.
31. The Tribunal has considered whether the Applicant might face persecution in Vietnam on the basis of his being a failed asylum seeker imputed as having political opinions contrary to those of the Vietnamese government; or because he left Vietnam illegally, without an official passport. In light of the Country Information now reproduced above, the Tribunal concludes that the Applicant is unlikely to be at risk of persecution because of any of these things.
32. The Tribunal is not satisfied that the Applicant qualifies as a refugee for the purposes of s.36(2)(a) on the basis of any of the protection claims now made by him.
33. 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).
34. Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has then considered the alternative criterion, in s.36(2)(aa). In order to qualify for complimentary protection under s.36(2)(aa), there must be substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia and returned to Vietnam that there is a real risk that the Applicant will suffer “significant harm”. The Tribunal is not satisfied that there is any real risk of that happening.
35. The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
36. 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 s.36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

37. The Tribunal affirms the decision not to grant the applicant a protection visa.

Andrew McLean Williams
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.

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