1614123 (Refugee)

1614123 (Refugee) [2017] AATA 305 (15 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614123
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:David Corrigan
DATE:15 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 15 February 2017 at 3:19pm
CATCHWORDS
Refugee – Protection visa – Vietnam – Religion – Catholic – Redemptorist – Imputed political opinion – Anti-government activities – Arrests – Resumption of church land

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] July 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims can be summarised as follows. He was born in [Village 1], [City 1], Nghe An, Vietnam. As set out in the delegate’s decision (a copy of which was submitted to the Tribunal) he arrived in Australia on a [temporary] visa [in] August 2015. This visa ceased [in] September 2015 and he was detained [in] June 2016. He was arrested and convicted of for [a criminal offence].
The applicant left Vietnam because he could not practise his Catholic religion freely. He is wanted by the authorities for activities related to his Catholic religion and for participating in anti-government activities. In [year], he joined a Catholic student group at his university whilst he was attending a church ([Church 1]) in Hanoi. He prayed with this group and did charity work and helped organise entertainment and sports activities together.
The applicant joined another Catholic group in 2008 which was to discourage abortion. He gave information to churchgoers about accessing counselling and orphanages. He went to hospitals and clinics in Hanoi where abortions were performed. He [conducted various rituals and services]. He took babies to orphanages. He did this twice a week for a year. The authorities found out about the group and told them it was illegal and they would be arrested. Some group members were expelled from the university. He was scared to continue his activity because he did not want to be arrested.
In [2008], the government came to destroy the [Church 1] church and take the land the church was built on. They used bulldozers and destroyed the statue of Maria outside the church and removed the statues from inside. In November 2008, a prayer vigil was held over a few days on the church land and a few thousand people attended. On the first day of the vigil, police released capsicum spray or tear gas. Some people were unable to flee and they were beaten with electric baton. The applicant claims he was arrested by police on that day with approximately [number] other protesters. He was taken to a police station in [District 1] of Hanoi and kept overnight. He was punched and kicked by the police. He was also beaten with the electric baton. He was punched in the face and as a result had a broken nose. He was forced to admit that he disturbed public peace and order. He was released the next day with threats that if he attends gatherings again for protest, he will be imprisoned.
In early 2010, the Chinese government invaded Islands belonging to Vietnam. The student group the applicant joined in protests against Chinese occupation. Hundreds of people attended that protest. Within less than an hour, Vietnamese police arrived and told them to disperse. The applicant was able to run away. In approximately March 2010, the applicant’s father told him that two police officers visited his parent's house and served a summons for him to report to local police station. The summons stated that he needed to report to police station because he had attended a protest in 2010. The applicant was at his [Relative 1’s] house at that time. His father told him that police would arrest him and possibly harm him. He suggested that the applicant run away. The applicant went to [Country 1] on the same night with help from some of his friends.
The applicant continued to attend a Catholic Church in [Country 1]. He joined a [City 1] Catholic Church group from Vietnam that prayed and sought freedom for those arrested while protesting for human rights. Meanwhile, police attended his parent's house again looking for him. They confiscated his personal documents and told his father to notify them if he makes contact with them.
The applicant’s [Relative 2] was arrested in August 2011. Police took him saying that they needed him to go to the police station to talk about an unspecified matter. His [Relative 2] has not returned home since then. His [Relative 2] was a member of a Church group in [City 1]. He participated in activities and protest seeking peace, freedom and human rights in Vietnam. The applicant does not know what role he played in those groups or protests. His [Relative 2] was arrested as part of a group of [number] Catholic people. The applicant believes that they were accused of protest against the government, though he is not sure exactly what the charges are. He was given three years prison sentence and a suspended sentence in 2011 or 2012. During the trial, authorities tried to prevent his family and human rights group from attending the trial. The representing lawyers were also arrested. The applicant’s [Relative 1] actively campaigned for the release of [Relative 2]. She was interviewed by several media outlets and her story was on TV and internet. She needed support for a medical procedure. The human rights organisation and other people tried to contact her to help, but the Vietnamese authorities prevented them.
In October 2013, the applicant returned to Vietnam from [Country 1] to assist her ailing [Relative 1]. Nine to ten days after his return, his father told him about three police officers attending his parent's house. They served a summons and asked for him to attend the local police station. He fled to [Country 2] in January 2014.
In 2014, the applicant’s [Relative 2] was released from jail. He was tortured in custody and forced to confess that he had committed crimes. Some prisoners died in custody as a result of torture. He was denied food and often given extremely low quality food. He was interviewed after his release and details about his torture were published in articles and videos. He is still under house arrest.
In April 2014, two police officers visited the applicant’s parent's house again looking for him. They wanted to know where he was and what he was doing. They told his parents and [Relative 1] that his family will need to notify police if they want to leave the province.
The applicant’s parents are currently under police surveillance and control. [In] November 2016, the police attended his parents’ house and they were told they could not move without permission from the police. The police asked them about his whereabouts and they were told if they did not inform them when they found out, they would be in trouble. The police said he had betrayed the government and had not reported when he was supposed to. The police said that if they find out where he is and he has applied for refugee status they would put him in prison.
The applicant’s father had to attend the police station and they asked about the applicant. They threatened him not to contact human rights organisations or they will imprison him. They threatened to put him and the applicant in prison and the father told them he did not have contact with him. Human rights associations contacted his [Relative 2] and said they could help him and the family. His [Relative 2] did not tell them about the applicant because the Vietnamese government pretend to work for human rights organisations.
[In] November 2016, the applicant’s [Relative 1] informed him that 9-10 policemen came to his parents’ house during the night and destroyed some of his parents’ property. They forced his parents to sign paperwork confirming that he had participated in demonstrations against the government and had been detained and then later summonsed. The police said that his [Relative 2] was in the Viet Tan party and was put in prison. They said based on the fact that he and the applicant had participated in anti-government activities, their property would be taken and they would be put in prison. They said that his [Relative 2] was in probation and that the applicant had escaped. They demanded to know where the applicant was and asked his parents to give them to provide them their land title. The police searched for the land title. They beat his parents. They said they would contact the bank for the land title. The parents refused to sign a paper to tell them where the applicant was. [A relative] used her phone to record what was happening. The police slapped her and took the phone. The police took his mother’s phone. A lot of neighbours came to see what was going on and the police left. They said they had information that he was seeking refugee status overseas and if that was true, it was a serious offence.
The applicant also fears harm because of his [criminal] conviction in Australia. The Vietnamese government will harm him if they find out he has committed [these] offences and has a criminal record in Australia. He also fears the Vietnamese authorities will find out that he has applied for protection in Australia against the Vietnamese government and harm him on that basis. He is scared because the Australian government obtained a Vietnamese travel document for him they will know that he has sought asylum.
Country of reference
The applicant claims to be a Vietnamese national. There is no evidence to the contrary and he speaks Vietnamese and I find (as did the delegate) that Vietnam is his country of nationality.
Assessment of claims
I conducted two hearings with the applicant and extensively questioned him about his claims and consider overall that he has given highly consistent and rather detailed evidence throughout the application process about his claims. His claims are also broadly consistent with country information concerning the Vietnamese government’s treatment of Catholics (in particular Redemptorists) who undertake religious activities that is perceived to actively oppose government policy or pose a threat to the state.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.
The applicant has also provided some documentary evidence that supports his claims:
·The original and translated version of a summons from the [Village 1] police requesting the applicant to attend their station on [in] October 2013.
·A translated copy of a support letter, dated 23 January 2017 signed by members of the applicant’s family and members of the clergy.
·Translated copies of various court documents related to the imprisonment of the applicant’s [Relative 2].
·Various photos of the applicant and his [Relative 2] and other family members involved in religious and political activities.
·Translated copies of family register and marriage certificate documents together indicating that the applicant is [related to] [name deleted].
·[Publication name] article, dated [in] 2013, which indicates that [name] is a Catholic activist from [City 1], Nghe An province who was arrested [in] 2011 under Article [number] of the Vietnamese Penal Code and sentenced to three years’ imprisonment plus two years’ controlled residence.
I am conscious that document fraud is common in Vietnam,[2] however, I have given some weight to this evidence as supporting his claims.
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.
My major concern with the applicant’s credibility relates to his delay in applying for protection and period of unlawfulness that was ended only by his arrest (and later conviction) for [a criminal offence]. The applicant has claimed that he was told by an officer in the Australian embassy in [Country 2] that he had been granted a one year [temporary] visa; I do not accept it plausible or credible that he would be told this by an Australian official when he was clearly only be granted a [temporary] visa for one month. The applicant has also claimed that he only knew a little bit of English at the time and could not read English and that the visa grant notice referred to the years 2015 and 2016. He has submitted a copy of his visa grant notice that states the visa was granted on [in] July 2015 for stay for one month with the last date to arrive being [in] July 2016. The applicant’s cousin gave oral evidence to the Tribunal that she was an Australian citizen and that the applicant stayed with her at her house when he came to Australia. She stated that she speaks very little English but the applicant had told her that he thought he had a visa for one year’s duration and she had seen the grant notice and thought that too. She said the applicant had wanted her to help obtain legal assistance to seek protection and that she had gone to a lawyer (who she named) in [suburb] to tell him about the situation but the applicant was then arrested. Though I am far from convinced by the evidence of the applicant and his witness in relation to these matters, given their lack of English and the applicant’s overall detailed and consistent evidence about his claims, I find that this concern is not sufficient to outweigh other factors. I have other concerns about the applicant’s credibility and overall, I am of the view that many of the claims made by him are probably not true. However, I am unable to reach a positive state of disbelief that his claims are not true and I have considered his claims under “the what if I’m wrong” test (the possibility that the alleged past events occurred).
I therefore accept that the applicant is a Catholic and that in [year] he joined a Catholic student group at his university whilst he was attending a church ([Church 1]) in Hanoi. I accept that he prayed with this group and did charity work and helped organise entertainment and sports activities together. I accept that the applicant joined another Catholic group in 2008 which was to discourage abortion. I accept that he gave information to churchgoers about accessing counselling and orphanages. I accept that he went to hospitals and clinics in Hanoi where abortions were performed and he [conducted various rituals and services]. I accept that he did this twice a week for a year. I accept that the authorities found out about the group and told them it was illegal and they would be arrested. I accept that some group members were expelled from the university and that the applicant was scared to continue his activity because he did not want to be arrested.
I accept that in 2008, the applicant attended a prayer vigil concerning a dispute that the [Church 1] Church was having with the government over land. I accept that he was arrested by police on that day with approximately [number] other protesters. I accept that he was taken to a police station in [District 1] of Hanoi and kept overnight. I accept that he was beaten and was forced to admit that he disturbed public peace and order. I accept that he was released the next day with threats that if he attends gatherings again for protest, he would be imprisoned. Country information supports that such protests were held and that protestors were injured and arrested by police.[3]
[3] Human Rights Watch, Vietnam: End Crackdown on Catholics Peaceful Protestors, Beaten, Arrested and Harassed, 6 October 2008.
I accept that in early 2010, the applicant attended a protest relating to the Chinese government invasion of Islands belonging to Vietnam with friends of his from his university Catholic group. I accept that the Vietnamese police arrived and told them to disperse and that the applicant was able to run away. I have not identified reports of this particular protest and the police response, however I note that a 2011 BBC report states that attempts to protest publicly in the past about this issue were quashed by the authorities as Hanoi tried not to offend China.[4] I further note that the Vietnamese government has recently arrested protestors demonstrating about this issue.[5]
[4] British Broadcasting Corporation, South China Sea: Vietnamese hold anti-China protest, 5 June 2011,
[5] South China Morning Post, Arrests as Vietnam breaks up rally against China’s ‘invasion’ of Paracel Islands, 19 January 2017,

I accept that in approximately March 2010, the applicant’s father told the applicant that two police officers visited his parent's house and served a summons for him to report to local police station. I accept that the summons stated that he needed to report to police station because he had attended a protest in 2010. I accept that he was at his [Relative 1’s] house at that time. I accept that his father told him that police would arrest him and possibly harm him and he suggested that the applicant run away. I accept that the applicant went to [Country 1] on the same night with help from some of his friends.
I accept that the applicant continued to attend a Catholic Church in [Country 1] and he joined a [City 1] Catholic Church group from Vietnam. I accept that police attended his parent's house again looking for him and they confiscated his personal documents and told his father to notify them if he makes contact with them.
I accept that the applicant’s [Relative 2] was arrested in August 2011. I accept that his [Relative 2] was a member of a Church group in [City 1]. I accept that the [Relative 2] was given three years prison sentence and two years suspended sentence in 2011 or 2012. I accept that the applicant’s [Relative 1] actively campaigned for the release of [Relative 2]. I accept she was interviewed by several media outlets and her story was on TV and internet. I accept that in October 2013, nine to ten days after his return to Vietnam, the applicant’s father told him about three police officers attending his parent's house. I accept that they served a summons and asked for him to attend the local police station. I accept that in 2014, the applicant’s [Relative 2] was released from jail. I accept that he was tortured in custody and forced to confess that he had committed crimes. I accept that he was interviewed after his release and details about his torture were published in articles and videos and that he is still under house arrest.
I accept that in April 2014, two police officers visited the applicant’s parent's house again looking for him. I accept that they told his parents and [Relative 1] that his family will need to notify police if they want to leave the province. I accept that [in] November 2016, the police attended his parents’ house and they were told they could not move without permission from the police. I accept that the police asked them about his whereabouts and they were told if they did not inform them when they found out they would be in trouble. I accept that his father had to attend the police station and asked about the applicant and that they threatened to put him and the applicant in prison and the father told them he did not have contact with him.
I accept that on 25 November 2016, the applicant’s [Relative 1] informed him that 9-10 policemen came to his parents’ house during the night and destroyed some of his parents’ property. I accept that they forced his parents to sign paperwork confirming that he had participated in demonstrations against the government and had been detained and then later summonsed. I accept that they said based on the fact that the applicant and [Relative 2] had participated in anti-government activities, their property would be taken and they would be put in prison. I accept that they demanded to know where the applicant was and asked his parents to give them to provide them their land title. I accept that the parents refused to sign a paper to tell them where the applicant was and they and his [Relative 1] were assaulted. I accept that the applicant is of adverse interest to the Vietnamese authorities.
The Australian Department of Foreign Affairs and Trade (DFAT) has produced an authoritative report on the human rights situation in Vietnam that addresses the situation of religious and political activists (including Catholics and Redemptorists). Its’ reporting and assessment is consistent with other country information I have seen (including that contained in the agent’s submissions and US State Department and UK Home Office reports) on these matters. Relevantly DFAT state:
3.19 Broadly speaking, DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam—which can be broadly defined and include land use issues—religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. There may, however, be restrictions on some activities and the freedom of individuals to travel outside of Vietnam to attend religious festivals and events. There are credible reports of restrictions on the activities of some unregistered groups, including allegations of violence and harassment, which are discussed in more detail in following sections. DFAT is not aware of credible claims of societal abuse or systemic discrimination based on religious practices. Authorities are, however, concerned about the potential for religious groups to be mobilised for political purposes.
3.20 People who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action to curtail their activities. These groups can include those with an anti-government agenda that organise large numbers of people in public spaces or promote civil activism. For example, a Catholic organisation known as the Redemptorists (see below) has attracted attention from authorities for allegedly using religious institutions and instruction to oppose state policies and to raise concerns about corruption. While it is difficult to obtain accurate information on exact numbers, there is credible evidence of dozens of people serving prison sentences for political-religious activities.
3.21 DFAT assesses that individuals who participate in unregistered religious organisations which are perceived by the state as being opposed to government policy are highly likely to be monitored, harassed, arrested, detained or prosecuted by authorities.
…
3.23 Members of independent Catholic groups opposed to government policies have been subject to harassment by authorities. While exact numbers are unavailable, reliable sources suggest that over 30 activists associated with Catholic churches have been arrested since 2011 (out of an estimated Catholic population of approximately 6.5 million). While some have been charged with ‘crimes against the State’, others are yet to be formally charged. According to the 2013 US State Department’s International Religious Freedom report, in July 2013 police forcibly removed a group of Catholics who had been praying in front of a church in Ho Chi Minh City, having travelled from other provinces to worship after land and property had allegedly been seized by local authorities. Several members of the group reportedly required hospitalisation after being beaten by police.
3.24 Nonetheless, DFAT assesses that Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference.
3.25 The Redemptorists organisation is a missionary congregation of the Catholic Church. Although the Catholic Church is a registered religion, Redemptorist congregations are not approved by the government. While the exact number of Redemptorists in Vietnam is unknown, reliable sources estimate there to be over 100,000 throughout Vietnam. The largest congregations can be found in Hanoi, Ho Chi Minh City and Nghe An Province. The movement has been active in calling for government accountability, as well as freedom to provide religious education services and implement poverty relief initiatives.
3.26 In January 2013, thirteen bloggers/writers/activists, many of whom were Redemptorists, were given jail sentences of between three and 13 years for ‘plotting to overthrow the government’. Some of these sentences were later reduced to four years on appeal, but two people are still facing 13-year sentences. The activists were allegedly associated with Viet Tan (Vietnam Reform Party), a group advocating for freedom of expression and freedom of association in Vietnam. The Government of Vietnam considers Viet Tan to be a terrorist organisation, although this has been publicly contested by some western countries, including the US. Australia does not recognise Viet Tan as a terrorist organisation. The Office of the UN High Commissioner for Human Rights (OHCHR) has referred to Viet Tan as ‘a peaceful organisation advocating for democratic reform’.
3.27 In Nghe An Province in September 2013, demonstrations involving several hundred Catholics—including Redemptorist followers—were broken up by police. The protesters had been calling for the release of two parishioners jailed without charge since June that year; these protesters had in turn been calling for the release of the 13 Redemptorist activists referred to above. Police reportedly used tear gas and batons to disperse the crowds, resulting in around 30 protesters being injured. A small number of protesters were arrested, and were released the following day.
…
3.34 Freedom of political expression against the CPV, the government or its policies is generally not tolerated by the state. The government’s tight control of the media, civil society and civic spaces means that protests are rare. Permission to hold public demonstrations must be sought from government authorities and is rarely granted.
…
3.40 DFAT assesses that the use of official force to control political activism, protests or perceived political opposition is generally used as a last resort by the state. The physical suppression of protests may range from the outnumbering of protesters by police, to the arrest of protest leaders, to use of riot control measures, including beatings, water cannons, pepper spray and tear gas. There are widespread reports suggesting that political activists who are outspoken in their opposition to the CPV, the government or its policies are monitored, harassed, intimidated, arrested and detained without charge. DFAT assesses these reports to be credible.[6]
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.
Considering all of the country information and all of his individual circumstances, I find that the applicant faces a real chance of persecution involving serious harm (significant physical harassment and ill-treatment and threat to liberty) for reasons of his religion and actual and imputed political opinion now and in the reasonably foreseeable future at the hands of the Vietnamese state as per s.5J of the Act.
I find that the essential and significant reason for the persecution would be the applicant’s actual and imputed political opinion and religion and that the conduct feared by the applicant is systematic and discriminatory as per s.5J(4) of the Act. I find that any modification of the applicant’s conduct would conflict with a characteristic which is fundamental to his conscience and would alter or conceal his political and religious beliefs such that it would not be reasonable for the applicant to modify his conduct to avoid a real chance of persecution and that therefore s.5J(3) of the Act does not apply. As the persecution feared by the applicant is from the Vietnamese authorities, I find that effective protection measures are not available to him and that the real chance of persecution relates to all areas of the country: s.5J(1)(c) and s.5J(2) of the Act.[7] Accordingly, the applicant has a well-founded fear of persecution for the purposes of s.5J of the Act.
[7] I note that DFAT state that the strong and effective Vietnamese state means that there are few options for internal relocation to seek protection from state authorities: Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.
Given these findings, I have not addressed the applicant’s other claims relating to his status as a failed asylum seeker and [criminal] conviction in Australia.
I find that the applicant does not have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David Corrigan
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 305

15 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction