1617666 (Refugee)

1617666 (Refugee) [2018] AATA 3145 (31 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617666
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Christopher Smolicz
DATE:31 May 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 31 May 2018 at 11:48am

CATCHWORDS
Refugee – Protection Visa – Vietnam – Homeless orphan child in Vietnam– Religion – Catholic –Imputed political opinion – Anti-government political opinion –Personal information was disclosed by the Department – Failed asylum seeker – Not a political or religious activist – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 on 7 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
On 19 March 2011 the first-named applicant (the applicant) arrived in Australia by boat from Vietnam. She arrived with no documentation.
Soon after arriving in Australia she met Mr [A] (Mr [A]) at [a specified place]. Mr [A] arrived in Australia with the applicant, travelling on the same boat. The applicant claims she had not met Mr [A] before they arrived in Australia. The applicant and Mr [A] have since married and had two children (the second and third-named applicants).
On 21 March 2011 the applicant took part in an Entry Interview by an officer from the Department of Immigration (the Department). The applicant claimed she was [an age] year old. She claimed she would face a real chance of being harmed for reasons of being a homeless child in Vietnam.
On 13 July 2011 the applicant made a statement with the assistance of a Vietnamese interpreter and her migration agent[1] in which she claimed she would face harm in Vietnam for reasons of being a homeless orphan child.
[1] Under the Immigration Advice and Application Assistance Scheme (IAAAS), the Government provided funding to qualified, independent immigration professionals to deliver immigration advice and primary visa application assistance to people who arrived lawfully in Australia. From 31 March 2014 the IAAAS ceased to be available to people who arrived illegally in Australia.
On 15 July 2011 the applicant took part in a second interview with a Departmental officer. The purpose of the interview was to assess the applicant’s protection claims. The applicant was advised that all information given by her during the interview would be treated as confidential and the information would not be made available to the authorities in Vietnam. The applicant repeated her earlier claims that she was a homeless orphan child.
The applicant’s claims were assessed by the Department and she was found not to be a person to whom Australia has protection obligations. The applicant sought merits review with the Independent Protection Authority (IPA).
On 19 January 2012 she was interviewed by an independent assessor ([Mr B]) as part of the IPA process. She only claimed to fear harm in Vietnam as a result of being a homeless street child. [Mr B] questioned the applicant if she was making any claims associated with being a Catholic. The applicant said that she did not have any problems associated with being a Catholic because she was a street child and did not participate in any church activities.
On 4 April 2012 the applicant escaped from immigration detention and travelled to [a city in Australia] where she got in contact with Mr [A].
On 15 May 2012 the IPA upheld the Department’s decision not to grant her a protection visa. The applicant sought judicial review with the Federal Magistrates’ Court. She subsequently withdrew this application.
On 12 July 2012 the applicant and Mr [A] were subsequently caught by the authorities and released into community detention.
On 16 February 2014 the applicant married Mr [A]. The applicant and Mr [A] have had two children born in Australia: [Child 1], born on [date of birth] and [Child 2]born on [date of birth].
On 23 December 2015 the applicants and Mr [A] applied for a XE-790 Safe Haven Enterprise visa (SHEV) which is the subject of the current application. The applicant applied for the visa with Mr [A] and her two children. The applicant and Mr [A] made individual claims for protection. The applicant has admitted that she made false claims when she arrived in Australia and that claims made by the applicant in the SHEV application are different to the claims when she first arrived in Australia.
On 7 October 2016 the Department refused the application.
On 25 October 2016 the applicants applied to the Tribunal to review the delegate’s decision.
The Tribunal conducted a hearing with the applicants on 19 March 2018. The Tribunal conducted a separate hearing with Mr [A] and has made a separate decision in relation to his claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The Tribunal raised with the applicant at the hearing that she had made various claims for protection since she arrived in Australia. The applicant confirmed that she was only pursuing the claims set out in correspondence dated 10 March 2018.
The Tribunal therefore finds that the issues in this matter are whether she meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·Of her Catholic religion;
·Her imputed political opinion as opposed to the government;
·Her personal information was disclosed by the Department (data breach);
·She is a failed asylum seeker who departed Vietnam without lawful authority.
The Tribunal has also assessed the claims made on behalf of the applicant’s children (the second and third-named applicants) on the basis that they were born in Australia and do not hold any Vietnamese identity documents and they will be orphaned if she and her husband are both imprisoned. The Tribunal has also considered the claims of the children by reference to s.36(2)(b) or (c) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of substantive claims
The applicant made new claims in support of the SHEV application. The new claims raise a number of credibility issues which were discussed with the applicant at the hearing.
The applicant declared she was born [date of birth] in [Nghi Loc], Nge An Province.
The Tribunal notes the applicant has provided various identity documents in support of her application which contain different dates of birth. According to her Vietnamese birth certificate the applicant was born on [a different date of birth]. [An] Australian Driver’s Learners Permit states she was born on [date of birth]. Her children’s birth certificates state she was born [date of birth], however her Australian marriage certificate states she was born on [a different date of birth].
At hearing the applicant said was born on] date of birth]. When she first arrived in Australia she lied and said she was born on [a different date of birth]. She claims the Department gave her the birth date of [another date of birth] and she used that date in her protection visa application. She claims she has amended her documentation to show that she was born on [date of birth].
The Tribunal is concerned about the inconsistencies in the applicant’s evidence and the fact that she did not provide any identification documents when she first arrived in Australia. The Tribunal has had regard to the Vietnamese birth certificate and is prepared to accept she was born on [date of birth] and is [age] years old.
She claims her mother lives in Vietnam with her [siblings]. Her father is deceased.
She described her religion as Catholic. She claims members of the Catholic Church are permitted to pray in their churches in Vietnam but the extent to which they can practise their faith is rigidly controlled by the Communist government. They are not allowed to congregate in masses and march against the injustice and persecution inflicted on them by the Government. As Catholics, their political opinion differs from the Communist government and they face constant monitoring and risk of significant harm. She is unable to obtain protection from the authorities.
She claims that she came to the attention of the Vietnamese authorities on the following occasions.
On 26 July 2009 she and others attended a peaceful march organised by the Catholic Church. The march travelled from her local church in [Nghe Loc], Nghe An to [District 1]. They were marching because the Vietnamese Communist government were going to take away land on which their church stood to build a historic monument.
She claims that she was aware that the authorities wanted to acquire the land to sell it off as commercial land.
During the march a group of people in yellow traffic police uniforms and some wearing civil clothes asked them where they were headed.
When they returned from [District 1] they were chased by a group of people with sticks who hit a few of their church members.
She could not see who they were because they were wearing face masks. She panicked and fled and lost her ID card.
Three or four days after the incident she received a summons [July 2009] from the director of [her home] District. Others from the march were also summonsed. She attended with others from her church. She was questioned about the march. She told them that she had a right to protest against discrimination inflicted on the Catholics. The interrogator slapped her in the face three times and told her she was forbidden from taking part in any marches. If she did it again she would go to prison. She was released and continued to attend church.
[In] August 2009 she and others organised another march against “injustice” to another [church].
They held banners. The police stood along the road but did not do anything. She found that others from her parish were taken and beaten and not allowed to come to the district and pray. A number of people were injured. They became scared and did not conduct any more marches.
She was sent another summons by the police. She was scared and did not attend.
She kept on receiving more summonses issued by the police. She did not respond. Her uncle bought her a ticket and she travelled to Saigon in September 2009. She did not have any identity documents and worked illegally.
She borrowed identity documents from a friend so she could work in Saigon. She did not want to come to the attention of the authorities and did not apply for documents in her own name.
She fears the authorities knew her activities and put her name on a watch list. She feared the authorities would beat her and continue to persecute her due to her faith and attendance at the marches. She could not return to her family. She feared she would be captured because she is a Catholic and against the opinion of the Communist regime.
She feared for her safety in Saigon as a defenceless woman. She heard banging on her door at night but could not report it to the authorities because she feared being detained.
She told her mother life was not safe in Saigon. Her mother spoke to someone who arranged to take her to Australia. She left Vietnam on 28 February 2011 to seek asylum in Australia.
She fears that if she returns to Vietnam the authorities will know she took part in the marches in 2009 and will summons her and persecute her due to her Catholic faith.
She does not have any papers and cannot work in Vietnam.
She and her husband would need to work if they return to Vietnam and she is worried about the safety of her children.
She claims that because of a Departmental privacy breach the authorities in Vietnam know she is in Australia and that she has sought asylum and was in detention. She claims this further highlights her political opinion and opposition to the Vietnamese government. As a consequence she fears she would be persecuted.
She does not have any identity documents and would be stopped at the airport because her birth certificate would identify her as a person who has fled the country. She will be arrested for fleeing Vietnam.
She cannot relocate anywhere in Vietnam. Her children do not have any paperwork because they were born in Australia. The children would not have any rights and could not access basic amenities, work and school.
Tribunal hearing
The Tribunal questioned the applicant about her protest activity in Vietnam.
The applicant said that on 26 July 2009 she was attending a church march from her local parish [Church 2] to another church. The applicant said she was not opposed to the government she was just attending mass. The purpose of the march was to pray for [Church 1] because the authorities took their land. The applicant said she was part of a large group of people and they were spread out, travelling by motorbike. The police stopped the group and asked where they were going.
The applicant said that she spoke out on behalf of the group and said we are going to another church to pray. The police became angry but could not do anything because of the large size of the group so they let them go. When they arrived at the church is was late. There were plain clothed police and police in uniform. The police were holding sticks and were chasing and beating the people. The applicant said that she managed to escape. The applicant said she dropped her purse when she was escaping and the police must have found her identity documents.
A few days later she received a summons. Her mother told her the summons was delivered by the postman. She does not have a copy of the summons. It contained her name and that she must attend the local police station. Three days later she attended at the police station. She was taken into a room and questioned. The police asked her who gave her permission to attend the protest. The applicant said that no one allowed them. The applicant told the police that they were Christians and were allowed to attend mass. She claims the police were angry and told her she was against the government. The police questioned her back and forth and got angry and slapped her on the face.
The applicant said she was [an age] years old at the time. This was the first time she had come to the attention of the police. She was beaten for four or five hours and she was told not to attend any other protests. She was released and went home. She continued to attend mass three times a day, seven days a week.
The applicant said that the group was carrying banners when they were stopped by the police because they were viewed as against the government. The applicant said the banners said they were praying for [Church 1] and demanded justice for Catholics who are suppressed by the government.
The applicant said that people were protesting because the government took their land to build a memorial. The church is located far away from her home area and she does not know what happened there in the past and she has not been to the church. Parishioners got beaten and arrested because they were part of the same diocese.
The Tribunal asked the applicant about her role in her local church. The applicant said she was just a member and was attending bible class. She also helped to clean the church in Vietnam.
The applicant said that [in] August 2009 there was a special religious service (Assumption of Mary) at her church. She and other parishioners were marching by foot to another church and the police were standing along the road. When they arrived at the other church a priest told them that other local parishioners were stopped by the police along the way. The applicant said that the purpose of the march was to pray for [Church 1].
The Tribunal asked the applicant why she took part in the march if the police had previously warned her not to take part in any march. The applicant said even though she was forbidden by the police she was a Christian and people were suffering and were being suppressed by authorities and had their land taken away and therefore she did not let her fear get in the way.
The applicant said that a week after the march she got another summons. She did not attend because she was scared that she would be beaten again if she attended. She does not have a copy of the summons but claims it was addressed to her, and claimed she attended the protest.

The Tribunal told the applicant at the hearing that it found it unusual that the police would summons [an age] year old girl and question her when there may have been hundreds of other parishioners involved in the march. The applicant said she does not know why the police summonsed her. She said it may be because she lost her purse or because she spoke out to the police when they stopped the group. The Tribunal found the applicant’s evidence lacking in credibility.
The Tribunal questioned the applicant regarding how the authorities would have known that she attended the second protest. The applicant said once a person has been watched they would continue to watch them. She claims she received three or four further summonses from the police sent by post or delivered to the head of the village. She did not attend because she was scared.
The Tribunal told the applicant that it found it unusual that she did not respond to the second summons and the police would continue to issue further summons demanding she attend the police station instead of attending at her home and arresting her. The applicant said she did not do anything wrong so there was no reason for the police to come and arrest her.
The applicant said she was scared and talked to her mother who spoke to her uncle, and she sent her to Saigon. When she arrived in Saigon she had no identification papers. She stayed with a male who came from her home area. She was scared at the time because she was a young single female. She asked to move and live with another female and borrow her papers to apply for work and rent accommodation. On a few occasions men would come and knock on her door and she was scared and did not respond. She told her mother. Her mother told her that the authorities questioned her about the whereabouts of the applicant. Her mother arranged for her to come to Australia by boat.
She has no idea who paid for the trip; her mother organised it. The applicant maintained that she got on a boat but did not know where it was going. Her mother did not tell her that she was going to Australia. She only found out she was in Australia when the boat was stopped by the Australian authorities. The applicant maintained at the hearing that she had no idea the boat was traveling to Australia. The Tribunal found the applicant’s claim that she only became aware that she was traveling to Australia when the boat was intercepted by the Australian authorities lacking in credibility and difficult to accept.
New evidence
The applicant provided the Tribunal with a translated document entitled “Confirmation Letter”. The letter is dated 18 February 2018 and purports to be written by the applicant’s mother. The letter is addressed to “Vicar of [Church 2],”
The Tribunal notes that the letter repeats the applicant’s claims. The applicant’s mother claims she felt frightened because the police kept coming to her house and gave her a summons for her daughter. She helped her daughter escape from Vietnam. She claims her family is still being harassed by the police and they are still trying to locate her daughter.
The Tribunal told the applicant it was surprised that her mother would only provide evidence in support of her claims in 2018 and not when she lodged her protection visa application. The applicant said that she was not aware she was required to provide evidence. The Tribunal noted that she had a migration agent who was representing her in January 2016 when she made her claims. The applicant maintained she was not asked to provide specific evidence. The Tribunal finds the letter lacks objectivity and is repeating the applicant’s evidence and has given it limited weight in assessing the applicant’s claims.
The applicant made further new claims before the Tribunal in a statutory declaration dated 8 March 2018. She claims that in 2013 her cousin [Mr C] was attacked by police and severely injured. People were praying in church when two plain clothes policemen entered the church and stated beating people and disrupted the mass. Two men were trying to defend the people. A few days later these two people went to a wedding and they were kidnapped and arrested. After the incident people from the parish went to the police station to protest and her cousin [Mr C] also took part in the protest asking for the men to be released. There were many police who started beating the protestors with [a certain weapon]. There was a big fight and many people were injured and [Mr C] suffered injuries and until today has problems. The two men were arrested and spent seven months in jail for being against the government. The applicant claims she did provide this information to her previous lawyer but was told that Immigration only wanted information about her.
The applicant provided a photograph of a beaten man dated 4 September 2013. The applicant’s agent placed the following caption under the photo: “[Mr C]’s cousin; photo taken after he was attacked by police in 2013”.
The Tribunal questioned the applicant about the incident involving her cousin. The applicant claims [Mr C] is her mother’s younger brother’s son. The applicant proceeded to provide a detailed account of the circumstances leading up to the incident at the hearing. The Tribunal noted that the photo purports to have been taken in September 2013 and she was in Australia at the time. The Tribunal asked the applicant where she obtained the photo and how is she able to recount the circumstances of the incident in such detail if she was not present in Vietnam at the time.
The applicant said she downloaded the photo from the internet. She telephoned her mother and she told her what happened. The applicant claimed she had the photo a long time ago and showed it to the Department but they told her it was not relevant.
The Tribunal requested the applicant to disclose the source of the internet footage. After the hearing the Tribunal was provided with a link to YouTube footage in the Vietnamese language where the photo can be located.[2] The applicant also provided further photos which she claims are of her cousin from the video footage on the internet.
[2] [Source deleted]
The Tribunal was also able to locate the identical photo to that provided by the applicant at the hearing on a CNN news report on the internet.[3] The media report confirm that an incident occurred on 4 September 2013 at Nghe An Province where the authorities clashed with local residents when the authorities refused to release two arrested [Church 2] [members]. The report makes no reference to a person called [Mr C].
[3] [Source deleted]
The Tribunal has had regard to the media report and accepts that the police in the Nghe An Province clashed with local residents when the police refused to release two Catholic men. The Tribunal does not accept that the photos of the injured man provided to the Tribunal are of the applicant’s cousin.
The Tribunal is concerned about the applicant’s evidence. The Tribunal is concerned that the information about [Mr C] was only presented to the Tribunal two days before the hearing.
The Tribunal found the applicant’s evidence about why the evidence was not provided to the Department lacking in credibility and inconsistent. The Tribunal finds that the applicant was represented by a migration agent when she lodged her application. The Tribunal finds it difficult to accept that her previous migration agent or the Department would have told her the evidence was not relevant and it was excluded from her application.
The Tribunal is also concerned that there are no documents to independently verify [Mr C]’s identity and confirm that he is the person in the photo. There is no statement from [Mr C] to confirm the applicant’s evidence. The Tribunal also finds it surprising that the applicant’s mother provided a detailed account in February 2018 (confirmation letter) recounting the applicant’s claims but makes no reference to the incident in 2013 involving [Mr C].
The agent provided a summary of the applicant’s claim in submissions dated 10 March 2018. At paragraph 3.21 the agent stated that the applicant’s mother has also been harassed and summonsed to appear before the police. The agent provided the Tribunal with a translated document entitled “Summons Notice” dated 11 August 2014 (attachment 4). The Tribunal questioned the applicant about the summons at the hearing. The applicant said she knows nothing about the summons (attachment 4) and that it was addressed to her husband’s mother and is not relevant to her claims.
The Tribunal has had regard to country information and accepts that there were a number of clashes between Catholic parishioners and the authorities related to the expropriation of land by the authorities from Catholic communities in the Vinh Diocese, Nghe An Province.[4]
[4] Report on Violations of Religious Freedoms in Vinh Docese, Nghe An Vietnam – To: Special Rapporteur of the United Nations on Freedom of Religion or Belief p.2 >
In particular, reports confirm there have been ongoing disputes between the government and the rebuilding of the [Church 1] which was bombed during the Vietnam War. The Diocese of Vinh and the Archdiocese of Huế have been trying to reclaim the ruins of the church since 1996 when it was taken back by the local government in an attempt to turn it into a war symbol of American aggression.[5]
[5] >
The Tribunal has had regard to the reports and finds that the dispute between Catholic parishioners and the authorities related to a dispute over church land which the government wanted to use as a memorial site. Reports confirm that an agreement was reached apparently to the satisfaction of both parties, whereby an alternate land site had been given to the Catholic Church for a church to be built. [6]
[6] of claims
The Tribunal has a number of concerns about the applicant’s evidence, which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to her experiences in Vietnam, her reasons for leaving Vietnam and her fears about returning to Vietnam. The Tribunal’s concerns are discussed below.
As detailed above, the applicant took part in an Entry Interview soon after she arrived in Australia. The interview was conducted with the assistance of a Vietnamese interpreter and a representative from [an organisation].[7] The applicant was advised that the purpose of the interview was an opportunity to provide reasons why she should not be removed from Australia.
[7] [Organisation details deleted]
The applicant was asked specific questions to determine why she left her country of nationality. She was questioned about her association with political groups, her involvement in anti-government protest activity and her religious activism. She was questioned about the impact of police on her day to day life. She was asked if she had ever been arrested or detained by the police. She was told that she is expected to give true and correct information and that if the information she gives at any future interview is different this could raise doubts abo the reliability of what she says.
The Tribunal finds that when the applicant first arrived in Australia she provided false information about her date of birth, her family and the arrangements made for her to travel to Australia. The Tribunal also finds the applicant provided the following evidence in her Entry Interview which is inconsistent with the evidence she provided in her protection visa application:
·She claims she would face a real chance of being harmed for reasons of being a homeless child in Vietnam. In particular the Tribunal notes that she provided the following evidence:
·    She is not associated or involved with any political group or organisation.
·    She has never taken part in any activities or protests against the Vietnamese government.
·    She is not a member of a particular social group or religious group. Her oldest cousin took her to church on Sunday and she did not celebrate Catholic holidays.
·    The police, security or intelligence organisations did not impact on her day to day life in Vietnam.
·    She has never been arrested, or detained by the police or security forces in Vietnam.
The Tribunal is aware that an Entry Interview is not an application for a protection visa. The Tribunal is also mindful about the weight it should place on information that is provided in an Entry Interview, which is usually conducted soon after an applicant arrives in Australia in circumstances where they may be nervous and may be distrustful of government officials. The Tribunal accepts that such factors may impact on the level of detail that asylum seekers provide in circumstances where they have little knowledge of the refugee application process. The Tribunal also accepts that it is not uncommon for asylum seekers to expand on their evidence and provide addendum statements, in which they seek to provide further details after they have had an opportunity to recall evidence, refresh their memory and obtain migration advice. The Tribunal finds however that it has to exercise caution when an applicant provides false information and subsequently changes their evidence and claims.
On 13 July 2011 the applicant made a request for Protection Obligation Evaluation (POE). She provided a statement in which she claimed to be [an age] year old homeless orphan who had no identification documents and no relatives in Vietnam.
On 15 July 2011 she took part in a second interview with a Departmental officer. The purpose of the interview was to assess her protection claims. She was advised that all information given during the interview would be treated as confidential and the information would not be made available to the authorities in Vietnam. The applicant repeated her earlier claims that she feared returning to Vietnam because she was a homeless orphan child.
On 19 January 2012 she was interviewed by an independent assessor ([Mr B]) as part of the IPA process. The applicant only claimed to fear harm in Vietnam as a result of being a homeless street child. Importantly, [Mr B] asked the applicant if she was making any claims associated with being a Catholic. The applicant said that she did not have any problems associated with being a Catholic because she was a street child and did not participate in any church activities.
This information detailed above is relevant because it inconsistent with the claims made by the applicant in support of her current protection visa application. Namely, she now claims to be born on [date of birth]. She is not an orphan and her mother, [siblings] reside in Vietnam. The applicant now claims that she did take part in protest marches organised by the Catholic Church in Vietnam in 2009. The applicant claims she did come to the attention of the authorities (police) in Vietnam. She claims she has been summonsed, detained, questioned and beaten by the police. She claims that because of her religious beliefs and involvement with the church in Vietnam she will be viewed as being opposed to the Communist government.
The Tribunal finds that the applicant has had a number of opportunities to provide evidence about her claims since she arrived in Australia. She has had access to interpreters and a migration agent at different stages of the visa application process. She has taken part in a number of interviews and has been given an opportunity to expand her claims.
The Tribunal raised these inconsistencies with the applicant at the hearing and in a letter issued under s.424A of the Act. The Tribunal has considered the applicant’s explanations for providing the false claims when she first arrived in Australia. The Tribunal does not accept the applicant’s explanation that she did not disclose the truth about her claims because she was scared and thought the governments of Vietnam and Australia were connected and her claims would be disclosed.
The Tribunal notes that in response to the s.424 letter the applicant conceded that she provided false information in her “first application” and referred the Tribunal to her admissions contained in her declaration. She maintained that she was scared and she was told by other people on the boat what she had to say to Immigration.
In her declaration the applicant also claimed that she did not tell the truth because “some people” had come to her mother after she had left Vietnam and asked where she was. Her mother did not respond and she and her mother do not know who the people were.
She also claims “other Vietnamese people” in the community who went to her church would ask her about her family, how she came to Australia and who she was. She claims she did not respond and called her husband and the person left. The Tribunal found the applicant’s explanation vague. It is unclear when she claims people came to speak to her mother or when the applicant found out about this information. It is unclear who the people were or what their purpose was. The Tribunal also finds her claim lacking in credibility in circumstances where the applicant had advice from a migration agent soon after she arrived in Australia.
At the hearing the applicant said that people on the boat told her to say she was an orphan child because it would improve her chances of staying in Australia because there is no one for her to return to in Vietnam. The applicant also said she was suffering from sea sickness and just followed what people said.
In assessing the applicant’s credibility the Tribunal finds it significant that the applicant did not simply confine her original claims to her Entry Interview when she first arrived in Australia. The applicant maintained and repeated her original claims during different stages of the refugee determination process. The Tribunal finds it concerning that it was only when her original claims were not accepted and she was given a second opportunity to apply for protection in December 2015 that she made new claims which are the subject of the current application.
The Tribunal finds that the applicant’s new claims are based on alleged events that occurred before she travelled to Australia. The Tribunal would have expected that if the applicant held a genuine fear of persecution from the authorities in Vietnam she would have disclosed this information soon after arriving in Australia.
The Tribunal does not accept the applicant’s explanation that she did not disclose the truth about her claims because she was scared and did what she was told by other people who travelled on the boat. The Tribunal finds the applicant has manufactured the claims.
The Tribunal notes that at the hearing the applicant described herself as an ordinary parishioner who would on occasion help to clean her local church. In assessing the applicant’s claims the Tribunal finds the applicant is not an organiser or leader in her local Catholic parish. She is not a political or religious activist.
The Tribunal does not accept the applicant took part in any protests or marches organised by the Catholic Church in Vietnam. The Tribunal does not accept the applicant has come to the attention of the Vietnamese authorities/police or was summonsed, interrogated, assaulted and detained. The Tribunal does not accept the applicant is on a watch list and the police have questioned her mother since the applicant has travelled to Australia.
The Tribunal does not accept the applicant had any involvement in organising any march, protest activity or vigil associated with the [Church 1] land dispute in Vietnam. The Tribunal does not accept the applicant spoke out and addressed the police or lost her identification documents during the first protest march.
The Tribunal does not accept the applicant had to travel to Saigon to escape from the authorities in her home area. The Tribunal finds the applicant has made false claims and provided inconsistent evidence in circumstances where earlier claims were not accepted by the Department and on review before the IPA.

Having found that the applicant has fabricated these claims the Tribunal also does not accept that claims made by the applicant’s mother in the confirmation letter dated 18 February 2018 that her family in Vietnam continues to be harassed by the police and the police are still searching for the applicant seven years after she departed Vietnam. The Tribunal does not accept that a person with the applicant’s profile as an ordinary Catholic parishioner who had previously never come to the attention of the authorities would be summonsed on multiple occasions and continue to be a person of interest because she took part in demonstrations organised by the Catholic Church in 2009.
The Tribunal finds that the applicant is not a person of interest to the authorities in Vietnam because of her religious beliefs and/or imputed political opinion as someone who is opposed to the Vietnamese government
Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if she returns to Vietnam because of her actual or imputed political opinion. Her fear of persecution is not well-founded. As a consequence the Tribunal also finds that there is not a real chance that the applicant’s children and her husband will face persecution because of her involvement in the Catholic Church and because of her anti-government political profile in Vietnam.
Catholics in Vietnam
The Tribunal has also considered whether the applicant and her children would face persecution in Vietnam because of their Catholic religion. The Tribunal accepts the applicant is a Catholic and that her children are Catholic and have been baptised in Australia. The Tribunal accepts the applicant and her children will attend church and continue to practise their religion in Vietnam.
In assessing the claim the Tribunal has had regard to the following information prepared by DFAT regarding Catholics in Vietnam:
Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country. [8]
[8] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]
The Tribunal has considered media reports provided by the applicant’s agent, including information prepared by Dr Peter Hanson.[9]
[9] Dr Peter Hanson, Lecturer, History of the Church in Asia, Catholic Theological College Melbourne, dated 2 September 2011
As detailed above the Tribunal accepts that conflicts did occur in 2009 between Catholic parishioners from the Diocese of Vinh and the Vietnamese authorities over the [Church 1]. The Tribunal also accepts that violent clashes occurred in September 2013 when a number of Catholic men were arrested by the authorities in the [Church 2].
As detailed above the Tribunal finds that the applicant did not take part in any protest activity in Vietnam and is not a person who has come to the attention of the authorities because of her religious beliefs or protest activity.
The Tribunal has had regard to DFAT’s most recent country information report, which states that Catholics are able to practise freely at registered churches, and bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the Communist Party of Vietnam and its policies.[10]
[10] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]
The Tribunal also finds that current country information provides a more optimistic outlook for Catholics in Vietnam.[11] According to a report from the UN Special Rapporteur on freedom of religion or belief, the relationship between Vietnam and the Vatican has improved markedly in recent years.[12]
[11] 2017 Annual Report, US Commission on International Religious Freedom, April 2017, CISEDB50AD3969, p.116
[12] Report of the Special Rapporteur on freedom of religion or belief, ‘Heiner Bielefeldt – Addendum: Mission to Viet Nam (21 to 31 July 2014)’, UN Human Rights Council, 30 January 2015, p.13, CISEC96CF13238
Having regard to the applicant’s profile as an ordinary Catholic parishioner from Nghe An Province who does not have an adverse profile with the authorities the Tribunal finds the applicant is able to freely practise her Catholic religion in Vietnam without fear of persecution.
In conclusion, the Tribunal is not satisfied that the applicant or her children would face serious harm if they were to return to Vietnam in the reasonably foreseeable future because of their Catholic religious beliefs. Their fear of persecution because of their religion is not well-founded.
Data breach
The applicant fears that her personal information has become known to the Vietnamese authorities because of a Departmental data breach and this will put her life in danger.
The Tribunal is aware that on 21 February 2014, the Australian Information Commissioner opened an own motion investigation into the Department following a media report that a database containing the personal information of approximately 10,000 asylum seekers was available on the Department’s website. The Commissioner came to the view that the Department had breached the Privacy Act 1988 by failing to put in place reasonable security safeguards to protect the personal information it held against loss, unauthorised access, use, modification or disclosure and against other misuse. [13]
[13] Department of Immigration and Border Protection: Own motion investigation report
On 13 March 2014 the Department wrote to the applicant to inform her that there had been unauthorised access to her personal information. The Department’s letter confirms that in February 2014 a routine report released on the Department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014.
The Department’s letter confirms that the information that was released was limited to names, date of birth, nationality, gender and details about an applicant’s detention (when detained and reasons for location). The information did not include any information about protection claims. The Department has also advised that the information released in the data breach was only available for a short period of time before it was removed.
The Tribunal discussed this information with the applicant at the hearing. The applicant maintained that her profile would be known to the authorities in Vietnam because she had taken part in protest activity in the past.
According to a report in the Guardian newspaper, citing KPMG as its source[14], the information was not downloaded in Vietnam.[15] The Tribunal finds there is no evidence that Vietnamese authorities accessed the information.
[14] KPMG were commissioned by the Department to independently review and report on the breach
[15] and
The Tribunal accepts that the applicant was in community detention at the time of the ‘data breach’ and some of her personal information could potentially be accessed by third parties due to the breach. The Tribunal also notes that the applicant has admitted that when she first arrived in Australia she had provided false information to the Department about her family background and date of birth. The Tribunal notes that the Departmental data breach occurred before the applicant lodged her current claim for protection. In the circumstances the Tribunal finds there is no possibility that her current claims could have been disclosed as a result of the data breach.
The applicant also claimed for the first time at the hearing that she shared articles in Australia about the Vietnamese government taking people’s land and suppressing people. The applicant did not refer the Tribunal to any articles, or details about what information she was referring to or who she shared it with or when this occurred. The Tribunal finds the applicant’s evidence was very general. The Tribunal finds the applicant did not mention this evidence in her original claims or declaration. The Tribunal put its concerns to the applicant at the hearing. The applicant said that no one asked her the question before so she did not provide the information. The Tribunal does not find the applicant’s claim that she shared articles in Australia about the Vietnamese government taking people’s land and suppressing the people credible.
Looking into the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant would face persecution from the Vietnamese authorities because the authorities would have knowledge of her refugee claims made in Australia. The Tribunal finds that the applicant’s fear of persecution because of her imputed political opinion as anti-government is not well founded.
Failed asylum seeker from a Western country who departed Vietnam illegally
The Tribunal acknowledges that if the applicant returns to Vietnam it would be apparent to the Vietnamese authorities that the applicant left Vietnam illegally. In the circumstances the Vietnamese authorities may well infer the applicant was in Australia seeking protection and is returning as a failed asylum seeker.
The Tribunal has therefore considered whether there is a real chance the applicant would be detained and mistreated, in a manner amounting to serious harm, upon return to Vietnam because she departed Vietnam illegally and is a failed asylum seeker who unsuccessfully sought asylum in Australia (imputed anti-government political opinion). The Tribunal has also considered this claim under the complementary protection criteria.
In assessing these claims the Tribunal has had regard to DFAT’s country information report on the treatment of returnees to Vietnam:
Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the Government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016. [16]
[16] DFAT Country Information Report Vietnam 21 June 2017 [5.15 -5.17]
The applicant’s agent referred the Tribunal to a media report where at least four returned asylum seekers were jailed in 2016 for departing Vietnam without approval. The Tribunal was also referred to an Amnesty International Report which documented the same incident.[17]
[17] >
The Tribunal notes that the people who were charged were identified as organisers and were charged with “organising for others to flee abroad illegally” under Article 275 of the Penal Code. As detailed above, DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.^[18]
[18] Boat migrants ‘turned back to jail’ despite Vietnamese promise, 24 May 2016, see also, DFAT Country Information Report Vietnam 21 June 2017 [5.15 -5.17]
The Tribunal also notes that the provisions of the decree that deal with irregular departure are not expressed in discriminatory terms and can be considered laws of general application with the legitimate purpose of regulating entry and exit of people to and from Vietnam.
The Tribunal has also had regard to the following information regarding the conditions faced by returnees to Vietnam.
DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.
DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.[19]
[19] DFAT Country Information Report Vietnam 21 June 2017 [5.21-5.22]
At the hearing the applicant said she had no involvement in organising the trip to Australia and was not intercepted at sea by the Australian authorities. She is not a people smuggler. The Tribunal has had regard to the applicant’s profile and DFAT’s report and is not satisfied that the applicant will be imprisoned by the Vietnamese authorities because she departed Vietnam illegally and travelled by boat to Australia. As a consequence the Tribunal does not accept that the applicant’s children will become orphans because the applicant will be imprisoned in Vietnam.
As detailed above the Tribunal does not accept the applicant had come to the attention of the Vietnamese authorities because she is a Catholic who took part in marches or that she was summonsed by the authorities and is on a government watch list.
The Tribunal finds that in the absence of a more significant profile, such as being a people smuggler or known political activist, the chance of the applicant being targeted for harm for having left Vietnam illegally in March 2011 is too remote to amount to a real chance.
The Tribunal has considered the applicant’s claims both individually and cumulatively and the Tribunal is not satisfied the applicant faces a real chance of persecution in Vietnam because she is a Catholic who departed Vietnam illegally and/or because she applied for asylum in Australia. The Tribunal finds that the applicant’s fear of persecution because of her religion, imputed or actual political opinion or membership of a particular social group is not well-founded.
Vietnamese children born overseas and household registration
The Tribunal has had regard to the Australian birth certificates located on the Department’s file and finds that the applicant’s children (the second and third-named applicants) were born in Australia and that Mr [A] is the children’s father. The Tribunal is satisfied that the children’s parents (the applicant and Mr [A]) are Vietnamese nationals.
The applicant fears that her children need protection because they were born in Australia and do not hold Vietnamese identity documents. She fears they will be denied an education and employment in Vietnam. The Tribunal notes that the second-named applicant is [age] years old and the third-named applicant is [age] years old.
The Tribunal has had regard to information from the USDOS Human Rights Report which confirms that by law the government of Vietnam considers anyone born to at least one citizen parent to be a citizen. The Tribunal also notes that education is free and compulsory in Vietnam.[20]. According to the Constitution of the Socialist Republic of Vietnam (1992) all citizens have a right to education. Article 59 states that “Education is a right and an obligation of citizens. Elementary education is mandatory and free. Article 10 of the Education Law introduced in January 2006 states that learning is the right and obligation of every citizen. Every citizen, regardless of their ethnic origins, religions, beliefs, gender, family background, social status or economic conditions, has equal rights of access to learning opportunities”.[21] The Tribunal finds that the applicant’s children will be entitled to have an education in Vietnam.
[20] USDOS Vietnam 2017 Human Rights Report, p.32, see also Law on Vietnamese Nationality at World Data on Education 7^th edition 2010/11 Vietnam compiled by UNESCO-IBE, >
The Tribunal has had regard to country information and is also satisfied that the applicant and her children will be able to obtain household registration on return to Vietnam. [22] Through household registration (ho khau), the applicants will be eligible for basic social services, including education, poverty assistance and health care, as well as access to subsidised medical care and national targeted programs for poverty reduction. The Tribunal does not accept that the applicant and her children would be denied or unable to obtain household registration.
[22] National Offender Management Service and Praxis Community Projects, 2017, Returning to Vietnam, CISEDB50AD157, pp.2-3
The Tribunal finds therefore that the applicant can apply to the Vietnamese authorities to obtain Vietnamese identity documents and register the second and third-named applicants. The Tribunal finds that it is mere speculation for the applicant to claim her children will not be able to find employment in the future in Vietnam.

The Tribunal notes that Vietnamese nationals residing overseas are referred to as Viet Kieu. A 2010 working paper describes the Vietnamese government’s 2004 formal guiding principles ‘for all governing bodies to follow when creating new policy toward the Viet Kieu’. Two of these principles are non-discrimination against ‘any past history or current status of the overseas community as long as they share the goals of nation building and promoting the growth of Vietnam’; and respect for the rights of overseas Vietnamese, while ‘encouraging them to promote Vietnamese culture and tradition’.[23] In the circumstances the Tribunal does not accept the applicant and/or her children will face persecution because of the time they have spent outside Vietnam.
[23] Pham, A T 2010, The Returning Diaspora: Analyzing overseas Vietnamese (Viet Kieu) Contributions toward Vietnam’s Economic Growth, DEPOCEN, Working Paper Series No. 2011/20, 27 November, pp.17, 18,
Looking into the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant’s children would face persecution from the Vietnamese authorities because they were born in a Western country and do not have Vietnamese identity documents.
[Details deleted].Complementary protection
The Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, Vietnam, there is a real risk they will suffer significant harm.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[24] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J.
[24] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
For the reasons above, the Tribunal finds that the applicant does not face a real risk of significant harm from the authorities if she returns to Vietnam because of her religious beliefs, her involvement in religious marches/vigils or because she will be returning as a failed asylum seeker (including the privacy breach).
For the reasons given above, the Tribunal finds that that the applicant and her children will be able to obtain household registration and the applicant children will be entitled to an education in Vietnam. [Details deleted].
With respect to illegal departure, as this is a real risk faced by the population generally for those who breached the law that deals with irregular departure, and not by the applicant personally, the Tribunal also finds, under s.36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm.
The Tribunal accepts that the United Nations High Commissioner for Refugees and other humanitarian organisations are permitted by the government of Vietnam to provide assistance to returning refugees;[25] and Vietnamese nationals are entitled to have their ho khau (household registration) reinstated, allowing them access to government services, when they return to Vietnam from overseas.[26] [27] The Tribunal acknowledges the applicants may not be returning as voluntary returnees under a UNHCR program, however the Tribunal considers that the treatment of such returnees is relevant information as to the way in which ordinary returnees, without a political profile, are treated by the authorities in Vietnam.
[25] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Vietnam, 24 May, Section 2(d)
[26] Immigration and Refugee Board of Canada 2009, VNM103088.E Vietnam: Process for being reinstated onto a household registration, 26 February, UNHCR Refworld, <
[27] Department of Foreign Affairs and Trade 2012, DFAT Report No. 1364 – Vietnam: RRT Information Request: VNM39900, 6 March
Relying on the independent country information referred to above, the Tribunal does not accept the applicant has a real risk of suffering significant harm because she left Vietnam illegally seven years ago and is a failed asylum seeker.
The Tribunal accepts the possibility she may be questioned at the airport upon return for reason of having been deported from Australia, but in the absence of any information to suggest such questioning routinely occurs or involves any level of mental or physical harm, the Tribunal does not accept that being questioned amounts to cruel and inhuman treatment or punishment, or degrading treatment or punishment, and does not amount to significant harm.
For the reasons given above the Tribunal does not accept on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will be arbitrarily deprived of their life, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment as defined. Accordingly the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visas.
Christopher Smolicz
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.
…

[2018] AATA 3145

31 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice