1711897 (Refugee)

[2018] AATA 3100

1711897 (Refugee) [2018] AATA 3100 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711897

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Mila Foster

DATE:13 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2018 at 10:48am

CATCHWORDS
Refugee – Protection visa – Vietnam – Political opinion – Opposition to Vietnamese Government – Anti-government activities in Australia – Democratic and Social Party – Religion – Catholic – Education – Confiscation of property – Threats of killing – Adverse family history – Working for colonial French government – Household registration – Delay in applying for protection – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J-5LA, 36, 65, 426, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, arrived in Australia in November 1994 and applied for the protection visa on 18 January 2016. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

3. The Tribunal, differently constituted, affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court due to a failure to comply with s.426(3) of the Act. The matter is now before the Tribunal pursuant to an order of the Court.

4. The applicant appointed a migration agent as his representative and authorised recipient after his matter was remitted for reconsideration.

   RELEVANT LAW

5. 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.

6. 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.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. 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.  

9. 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.

10. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Mandatory considerations

11. 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. DFAT produced such a report in relation to Vietnam on 21 June 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant’s claims and evidence have been presented to the Department[1] and Tribunal as follows:

    a.In the protection visa application he lodged on 18 January 2016.

    b.During an interview with the delegate in June 2016.[2]

    c.In documents submitted to the Department in support of his protection visa application. Those documents include what appears to be the applicant’s Vietnamese identity card, Vietnamese passport and high school graduation certificate, the last of four pages of a petition to the Minister seeking the applicant’s release from immigration detention and a letter of support from the president of [Agency 1].

    d.At the Tribunal hearing conducted by the previous member in November 2016 and January 2017.[3]

    e.Statutory declarations made by [Mr A] in January 2018 and [Mr B] in February 2018.

    f.At the hearing I conducted in February 2018[4] during which [Mr A] gave evidence and the applicant’s migration agent made oral submissions.

    g.In a post-hearing written submission made by the applicant’s migration agent in March 2018.

    [1] Formerly the Department of Immigration and Border Protection, now the Department of Home Affairs.

    [2] There is no audio recording of that interview before me however I have had regard to the account of that interview set out in the delegate’s decision record which the applicant provided to the Tribunal.

    [3] I have listened to and relied upon the Tribunal’s audio recordings of that hearing rather than the account given in the previous member’s decision record.

    [4] The hearing was conducted over two days via video as the applicant was in immigration detention in [state].

13. In summary, it is claimed that the applicant would be subjected to serious harm and significant harm by the Vietnamese authorities if he returned to Vietnam for reasons which relate to:

    a.His family history and his family’s actual and imputed political opinion against the Vietnamese government and Communists.

    b.The applicant’s anti-Vietnamese government political opinion and political activity in Australia.

    c.His Catholic religion.

    d.His failed asylum seeker status.

    e.His lack of ho khau (or household registration) in Vietnam.

14. The following provides some background to the applicant’s claims.

15. The applicant is [age] years old. He was born and lived most of his life in the city of Haiphong in northern Vietnam. He has never married or been in a de facto relationship. His parents are deceased and his immediate family members consist of [number] siblings in Vietnam. He attended high school as well as college and/or university in Vietnam. He left Vietnam legally when he was [age] years old and came to Australia on a student visa. He became an unlawful non-citizen when that visa expired in June 1995. He supported himself in Australia by working as [an occupation] and in a [business]. He was placed in immigration detention in August 2015 after coming to the attention of the authorities and has remained in detention since.

16. Vietnam came under the control of France in the 19^th century.[5]  Following a period of Japanese occupation during World War II, the Democratic Republic of Vietnam was established in 1945 under Ho Chi Minh, the Communist leader of a national resistance movement. The French returned to Vietnam but after military action by Ho Chi Minh’s forces, Vietnam gained independence from the French in 1954, although it was effectively divided between the Communist-ruled Democratic Republic of Vietnam in the north and the anti-Communist Republic of Vietnam in the south. A Communist-led insurgency in the south began in 1957 which ended on 30 April 1975 when Communist forces entered Saigon and the South Vietnamese government surrendered. In 1976 north and south Vietnam were reunified and the Socialist Republic of Vietnam was proclaimed. 

    [5] The source of the information in this paragraph is Political Handbook of the World, edited by Tom Lansford, Sage Publications, 2015, p. 1625–1626 and the DFAT Report, [2.1].

17. Having considered the claims and evidence before me I have concluded, for the reasons that follow, that the decision under review should be affirmed.

    The applicant’s credibility

18. I did not find the applicant credible for three reasons.

19. Firstly, his significant delay in applying for protection. The applicant applied for the protection visa approximately 22 years after he arrived in Australia and 21 years after the student visa he used to enter Australia expired.[6] The applicant has given the delegate,[7] the previous member and me various reasons for not applying for a protection visa sooner. For example, he said he did not know the law in Australia or about protection visas, he did not have money for a lawyer, an immigration lawyer gave him the wrong advice, he sought the advice of various lawyers who said applying for a protection visa was difficult, some people (apparently from the Vietnamese community in Australia) told him to apply but some told him not to, he could live in Australia safely whereas in Vietnam he had no family or anyone to support him financially, he feared being sent back to Vietnam where he would be harmed if his protection visa application was rejected, and some people advised him to wait until there was some change to the law in Australia which would enable him to remain on human rights grounds.

    [6] Delegate’s decision record, pp. 1–2.

    [7] See p. 8 of delegate’s decision record.

20. It is evident that the reasons the applicant has given for not applying for protection sooner are not entirely consistent but that it is nevertheless clear that he became aware from a number of sources that he could apply for a protection visa but chose not to do so for various reasons including that he was scared of returning to Vietnam. I have concluded that if his claims were true, that he left Vietnam because his family had been harmed by the Vietnamese government for decades and he genuinely feared returning to Vietnam he would have applied for a protection visa much sooner.

21. Secondly, the applicant’s claims developed over time. I detail the development of his claims in my consideration of them below. I have concluded that he has expanded and embellished his claims to strengthen his case.

22. Thirdly, his unsatisfactory testimony. On a number of occasions the applicant seemed to give intentionally long-winded, convoluted, or vague testimony. It appeared his aim was to avoid providing direct and clear responses to questions and matters put to him on those occasions. Further, testimony he gave about his claims changed and was contradictory. I give examples in my findings below. Overall, I was left with the impression that rather than testifying in a truthful manner on the basis of his actual circumstances and genuinely held fears the applicant often said what he thought would strengthen his claim for protection.

23. In assessing the applicant’s credibility I have had regard to the post-hearing submissions made by his migration agent on credibility including her submissions about the effects of immigration detention on detainees and that the applicant was nervous or anxious at the hearing. I do not however accept that the matters explain the flaws in the applicant’s evidence which led me to find that he is not credible. In particular it did not appear to me that the applicant was nervous or anxious. On the contrary he testified in what seemed a confident and composed manner. Further, no medical or other evidence has been presented to indicate that the applicant’s ability to testify was adversely affected by his state of mind or detention.

    Country of reference

24. The applicant stated in his protection visa application that he was a national of Vietnam and no other country. On the basis of his Vietnamese passport and what appears to be his Vietnamese identity card and in the absence of any evidence to the contrary I accept that the applicant is a national of Vietnam and no other country.

    Past harm by Vietnamese government and family history

25. The applicant claims that he and his family have been harmed in the past by the Vietnamese government due to their family history and their actual and perceived political opposition to the Vietnamese government, Communists and Communist Party of Vietnam (CPV), and that he left Vietnam due to the harm they had suffered. That harm allegedly included the applicant and his siblings being denied a public education and his parents thus having to pay for them to be privately educated, a four year delay in the applicant’s graduation certificate being issued, his parents’ property being confiscated in 2006 and an uncle being executed. The applicant claims that he would be harmed by the Vietnamese government if he returned due to his family history and their actual and perceived political opinion.

26. I do not accept that the applicant or any member of his family has been harmed in any of the ways he has claimed for reasons of their family history, their actual or perceived political opinion or activity in Vietnam, or because the applicant or any member of his family has done anything in Vietnam viewed adversely by the Vietnamese government, Communists or the CPV. That includes the claims that property owned by his family was confiscated by the Vietnamese authorities, that he and his siblings were denied a public education, and that threats were made to kill or execute any member of his family. I reject all the claims as fabrications for the following reasons and due to the applicant’s lack of credibility.

27. The claims have been inconsistent and embellished over time. For example, the applicant told me that his family were viewed as having an adverse family history and harmed in the past because his parents, grandfather, and grandmother had worked for the French up to the mid-1950s, his grandparents were classified as rich landowners exploiting the poor in the 1950s, his family had listened to a radio broadcast by the South Vietnamese government, his parents and members of his family were members of a political party called the Democratic and Social Party,[8] and his father contacted party members after parties other than the CPV were dismantled. The applicant stated in his protection visa application that members of his family and his parents supported the French, he told the delegate his grandparents had worked for the French and were against the Communist government. He mentioned to the previous member that his parents and grandparents had worked for the French, and in addition that his grandparents were classified as landowners in 1956 and his family had listened to south Vietnamese radio in 1973 or 1974. The applicant had not previously claimed that his parents or any family member were members of the Democratic and Social Party or any political party. When I questioned why this claim had not been made before, the applicant offered no explanation for not mentioning his family’s association with the party at the primary stage but stated that the previous member guided him only to his personal story and circumstances. I do not accept that explanation. The applicant had ample opportunity to raise his family’s involvement with the Democratic and Social Party during the previous hearing and I expect he would have raised it if, as he told me, his family’s association with that party led to his family being blacklisted, his father being viewed as opposed to the Communist government and it was one of the reasons his parents’ property was confiscated in 2006.

    [8] Referred to as the Democratic Socialist Party in the post-hearing submission.

28. The applicant claims that his parents’ property was confiscated in 2006 because of his family’s adverse history and his political activities in Australia. He told the delegate that his parents’ farm was confiscated but told the previous member that the property confiscated in 2006 included [details deleted], land and the family home. When I put to the applicant that there seemed to have been a difference in his evidence about what property was confiscated in 2006, he did not explain the discrepancy but instead made a new claim. He said that there were in fact two waves of confiscation – the first was in the mid-1950s when property owners and those who co-operated with the French were ‘accused’ and the second was in 2006. Questioned further, the applicant testified that during the first wave of confiscations his grandfather and uncle were accused of being rich property owners who were threatened with execution, his grandfather and father had to sign over the family [company] they had run for the French and his uncle was actually killed. He said the second wave of confiscations in 2006 related to the family [product] business, and that [their] farms, the house and associated land were all confiscated. The applicant had not previously mentioned any property confiscation in the 1950s nor that threats had been made to execute members of his family let alone that a relative was killed. Nor did he explain why the only property confiscation he mentioned to the delegate was the farm. Thus, it seems to me that the evidence he gave the previous member about the property that was confiscated in 2006 was an embellishment and the additional evidence he gave me that there was an earlier wave of confiscation and that his uncle had been killed were new claims he had invented to explain the earlier embellishment.

29. The applicant’s evidence about when he was told about the 2006 confiscation and by whom has varied. He indicated to the delegate that his parents told him about the confiscation in 2006, he told the previous member he was informed about it in 2006 by a neighbour and he told me he was informed of the confiscation in 2008 by a person he first referred to as a distant relative and then a distant parent. Asked about these variations in his evidence, the applicant’s long convoluted response did not address the inconsistencies. Instead he said he last spoke to his mother directly in 2004, his mother died in 2006 and it was not until 2008 that he was informed of his mother’s death and the 2006 confiscation by a neighbour. I expect that if his parents’ property was confiscated by the Vietnamese government in 2006 due to his family history and his political activities in Australia the applicant would have been able to clearly recount who informed him of such a significant event and whether he was informed of the confiscation in the year that it occurred or two years later.

1. Finally, if the applicant and his family had suffered decades of harm in Vietnam due to their family history and perceived and actual opposition to the Vietnamese government and Communists, the applicant left Vietnam due to that harm and he feared he would be harmed for those reasons if he returned to Vietnam, then I expect he would have applied for protection much sooner. 

2. In rejecting these claims I have had regard to the graduation certificate, the information in the [Agency 1] letter submitted by the applicant and the statutory declaration made by [Mr B].

3. The graduation certificate is dated [in] 1990 and refers to a decision made in 1986. I do not however accept merely because the certificate seems to have been issued four years after a decision of some kind was made that there was a delay in issuing the certificate for the reasons the applicant has suggested such as his family history and the actual or perceived political opinion he expressed in a final exam. I have thus given the graduation certificate no weight.

4. Regarding the [Agency 1] letter, the applicant told me he did not personally know the president who wrote the letter. The president writes that she understood from ‘active members of the Vietnamese community’ that the applicant arrived in Australia as an overseas student who was forced to end his education and get a job after his family’s assets were confiscated due to their family background and could no longer financially support him.  The writer of the letter did not know the applicant personally, the information regarding the circumstances of the applicant and his family have been provided by unidentified persons, the letter does not indicate when or how those persons came to know about those circumstances and most significantly the information does not appear consistent with the applicant’s claims. The applicant came to Australia as a student in 1994, his student visa expired in 1995, he participated in English classes with the ‘Vietnamese community’ between 1995 and 1998 and began working in Australia in 1996.[9] This indicates that he ceased his studies in Australia and began working well before the alleged 2006 confiscation. I have thus given the letter no weight in relation to the claims the applicant has made about his family history and confiscation of family property.

   [9] According to his protection visa application.

5. [Mr B] refers to the applicant escaping Vietnam in his statutory declaration. However, [Mr B] provides no details about this or on what basis he knows the applicant escaped. I thus give that assertion no weight.

6. Having rejected the claims that the applicant and his family were harmed in Vietnam in the past by the Vietnamese government, Communists and/or the CPV for reasons of their family history and/or their actual or imputed political opinion, I do not accept that the applicant left Vietnam due to any past harm and thus find that he does not face harm if he returns to Vietnam for reasons of his family history, the actual or perceived political opinion of any member of his family, and/or any actual or perceived political opinion he expressed in Vietnam prior to his arrival in Australia. 

   Applicant’s actual and imputed political opinion after departing Vietnam

7. The applicant claims that he is opposed to the Communist Vietnamese government and that he has expressed that opposition and his views on related human rights issues since he arrived in Australia. He claims he has done so primarily by participating in activities organised by [Agency 1], such as protests and signing petitions, and by attending 30 April commemorations in [City 1]. He claims those activities are one of the reasons his parents’ property was confiscated in 2006 and indicated to the delegate that the authorities in Vietnam had approached his family in Vietnam demanding that he return to Vietnam and stated that they wanted to punish him. However, there are significant flaws in the evidence the applicant has given about these claims.

8. The applicant told me that since about 1996 he engaged in all the activities organised by [Agency 1]. Asked whether he was an official member of [Agency 1] the applicant replied that he could not be an official member due to his illegal status in Australia but he was assigned as security at protests and rallies. The applicant had not previously claimed he was assigned security duty nor is that mentioned in the letter from [Agency 1]. In fact the [Agency 1] letter makes no reference at all to the applicant being involved with the [Agency 1] or any its activities. I questioned the applicant about this. He replied that after he was detained he contacted [Agency 1] president who promised to write a letter describing his involvement with [Agency 1] but the president’s successor wrote the letter. The applicant named the person he said was the successor. When I noted that the letter was written by a president with a different name the applicant gave a long convoluted response which was hard to follow but seemed to suggest that the new president did not write about his involvement with [Agency 1] because she did not know him personally. Given the president was willing to convey information in her letter about the applicant’s alleged family history which she had obtained from others, I expect she could and would have obtained and conveyed information in her letter about the applicant’s involvement with the organisation if he had been involved with [Agency 1] and even if she did not know him personally. The fact the letter does not refer at all to any involvement by the applicant in [Agency 1’s] activities seriously undermines his claims about his participation in all of the organisation’s activities.

9. The previous member questioned the applicant in detail about his attendance at the annual 30 April commemorations held in [City 1]. The applicant told her that the commemoration was always held on 30 April, that he had attended each year and that the last 30 April commemoration he attended in [City 1] was in 2015. Even when the previous member put to the applicant that according to information she had the 30 April commemorations in [City 1] were held on the weekend closest to 30 April, the applicant insisted that the event was held on the day that 30 April fell. When I raised this discrepancy with the applicant and the information the previous member had relied upon, he claimed that he did not say that he attended every year, that he said he only attended some years and had been mistaken about the event being held on 30 April rather than the closest weekend. Thus, the applicant directly contradicted the testimony he had given previously about how often he attended the 30 April commemorations. The applicant’s willingness to change his evidence when confronted with a flaw in his evidence undermines his credibility. Further, if the applicant attended the 30 April commemoration in [City 1] each year as he initially told the previous member then I expect he would have been able to correctly recall that the event was not always held on the day that the 30 April date fell but on the closet weekend to that date. In addition, if the applicant had been mistaken I expect he would have corrected himself when the previous member put to him the information she had that the commemoration was held on the weekend closest to 30 April. Instead the applicant insisted to the previous member that it was held on the 30 April. Hence I do not accept that the applicant was mistaken about when the 30 April commemoration in [City 1] was held.

10. In addition, the applicant told the previous member that he last attended a 30 April event in 2015 but had told the delegate the last 30 April event he attended was in 2014. When I put this inconsistency to him he merely stated that he was mistaken and that the last rally he had taken part in was in 2015 not 2014. According to the delegate’s decision record the applicant was detained in August 2015 and interviewed by the delegate in June 2016. I do not accept that the applicant could have been mistaken in June 2016 about whether the last annual 30 April event he attended was the year before or two years before.     

11. In assessing the applicant’s claims about his political activities in Australia I have had regard to the last page of the petition presented to the Department which refers to his ‘community work’ and states that after arriving in Australia the applicant stayed on as a political activist supporting freedom and democracy for Vietnam. However, I give that document no weight. It gives no details of the applicant’s activities in Australia or what first-hand knowledge, if any, the people who signed the petition had of the applicant’s political activism or community work in Australia.

12. I have given some weight to the statutory declarations made by [Mr B] and [Mr A] and the oral testimony given by [Mr A] (which did not elaborate materially on his statutory declaration). Their evidence provides only limited support for the applicant’s claims about his political opinion and activities in Australia as neither [Mr B] nor [Mr A] seem to have a close relationship with the applicant and their evidence is general and undetailed. I elaborate below.

13. Both [Mr B] and [Mr A] stated that they were introduced to the applicant by a mutual friend, [Mr C], at [a business] in [Suburb 1] where the applicant worked. They stated that they had conversations with the applicant at the [business] and [Mr A] stated that he relied on [Mr C] to interpret during his interactions with the applicant. The applicant testified that he and [Mr A] were neither friends nor acquaintances, had only met on a few occasions and that they could not liaise much due to the English language barrier.

14. [Mr B] stated that through his conversations with the applicant he became aware that the applicant was opposed to the Vietnamese government/communist regime and the applicant expressed a fear of returning to Vietnam due to his opposition to the communist regime, but does not elaborate on the applicant’s opposition, views or opinion. He said he could recall the applicant attending two protests in [City 1] sometime over five years ago and one protest in [Suburb 1]. [Mr B] stated that the applicant risks being arrested, jailed forever, forced to do hard labour or killed for his involvement in ‘anti-protests’ in Australia and because he ‘escaped’ Vietnam if he returns. However, [Mr B] does not elaborate on what he means when he refers to the applicant escaping Vietnam or why he believes the applicant would be arrested and gaoled if he returns to Vietnam for attending three protests years ago. [Mr B] said he knew two families that were sent back to Vietnam from Australia who were gaoled, beaten and tortured because they escaped from Vietnam but gives no details about these two families – for example, what they escaped from in Vietnam, when they escaped, or how he knows about what happened to them on their return. Given the general nature of the statements [Mr B] has made about the applicant, that the applicant would be arrested, gaoled, forced to do hard labour or killed if he returned to Vietnam, and the treatment of two families that returned to Vietnam, I have given those statements no weight.

15. [Mr A] said the applicant was not a supporter of the Vietnamese government; he saw the applicant at two rallies – one in [Suburb 1] in about 2010 or 2011 and the other some time after that in [City 2]. [Mr A] could not recall the last time he had contact with the applicant.

16. Given the consistency in the evidence given by [Mr B] and [Mr A] about the opinions expressed by the applicant I accept that the applicant is opposed to the Communist government of Vietnam. Further, as the evidence of [Mr B] and [Mr A] indicates that they witnessed the applicant attending two to three protests/rallies in Australia several years ago I accept that the applicant attended those particular events. However, given the unsatisfactory nature of the other evidence about the applicant’s activities in Australia which I have described above and his lack of credibility, I find that the applicant was only a participant in those events and do not accept that the applicant has participated in any other events, protests, or rallies in Australia, signed any petitions or engaged in any other activity in Australia which was or could be perceived as being critical of the Vietnamese government or the CPV. I find that the applicant is not, nor ever has been, a political activist, human rights activist or done community work in Australia. I have concluded that he significantly exaggerated the extent of his political activity in Australia.

17. Given the applicant has significantly exaggerated the extent of his political activity in Australia, only engaged in a handful of rallies/protests around the same time several years ago, he was aware he could apply for protection before he eventually did so, and his lack of credibility I have concluded that the applicant participated in the events witnessed by [Mr B] and [Mr A] for the purposes of making a protection visa application rather than a genuine expression of his political opinion. When I put this to the applicant, he denied doing so and stated that he engaged in political activity in Australia as an expression of his political opinion. Even though the applicant decided not to make a protection visa application until some time after participating in those events I am not satisfied that the applicant engaged in those activities otherwise than for the purpose of strengthening his claim to be a refugee. I thus must, pursuant to s.5J(6), disregard that conduct in determining whether the applicant has a well-founded fear of persecution in Vietnam.

18. As I have found that the applicant’s participation in those events was not a genuine expression of his political opinion, I find that if the applicant returns to Vietnam he will not nor would he wish to, in the reasonably foreseeable future, express his opinion about the Vietnamese government and/or CPV or any other actual or perceived political opinion in a public manner by attending protests, rallies or engaging in any other public event. I find that the applicant will express his opinions as he has in Australia with [Mr B] and [Mr A] in private conversations with people he is acquainted with.

19. It has been claimed and evidence cited in the post-hearing submission that the Vietnamese government monitors the political activities of Vietnamese citizens aboard. However, I do not accept that the applicant has come to the attention of the Vietnamese authorities due to his activities in Australia or that they have demanded his return to Vietnam and gave a letter to his siblings stating he would be punished. Even if such monitoring occurs, it does not necessarily follow that the Vietnamese government can identify Vietnamese citizens who have engaged in political activities in Australia. Further, given the applicant’s general lack of credibility, he has exaggerated the extent of his political activity in Australia, and the inconsistencies in his evidence about who told him that the authorities wanted him to return and to punish him, I do not accept that he has come to their attention. The applicant told the delegate that his parents and then his siblings told him the authorities wanted him to return and produced a letter saying he would be punished. However, the applicant told the previous member that he had not spoken to his siblings in 20 years. When I put this to him, his response was hard to follow but he seemed to indicate that he had not spoken to his siblings directly and the information had been passed on by his siblings via his mother until 2004 when he last spoke to her and via a neighbour after that. I do not accept that explanation as the applicant told the delegate that it was when he called home after his mother died that his siblings told him that the authorities had come to the house. That indicates the applicant spoke directly to his siblings via telephone sometime after his mother’s death in 2004.

20. In assessing the risk of harm the applicant will face if he returns to Vietnam due to his political activity and opinion, I put to the applicant information in the DFAT Report[10] which indicates that those who protest against and are openly critical of the government face varying degrees of risk of harm, that political activists and human rights activists face the highest risk of serious harm and significant harm such as detention and prosecution but those engaging in low-level political activity did face a risk of harm but did not seem to face a real chance of serious harm or significant harm. The applicant responded that anyone against the government is at risk. The independent information before me does not indicate that a person like the applicant who years ago attended only a few public events in Australia of the kind the applicant has attended, who will not attend public events which involve an actual or perceived adverse opinion of the Vietnamese government or CPV on their return to Vietnam, and will only privately express their opposition to the Vietnamese government and/or CPV in conversations with family, friends or acquaintances in Vietnam would face a real chance of serious harm or significant harm in Vietnam. Thus, on the evidence before me and having regard to the applicant’s particular circumstances, I find that there is not a real chance that the Vietnamese authorities would subject the applicant to serious harm for privately expressing his political opinion on his return to Vietnam and there is not a real chance he will face significant harm as defined in s.36(2A) for his political activity in Australia or privately expressing his political opinion on his return to Vietnam.

    [10] DFAT Report at [3.22]-[3.29].

    Religion claim

21. The applicant stated in his protection visa that his religion was Catholic. He did not make a claim on the basis of religion in his protection visa application. However, in response to being asked by the previous member whether he feared harm in Vietnam due to his religion, he replied that he would face discrimination. Questioned about his religious activity in Australia, he testified that he regularly attended a church in [Suburb 2] but asked the name of the church he told the previous member that he didn’t pay attention, it was a Vietnamese church in [Suburb 2] and on big occasions he attended a church in [City 2] near the station. Asked about his church attendance in Vietnam, the applicant testified that he attended church regularly but stealthily. Asked why he had not raised the claim before, the applicant replied that he had not been asked.

22. I questioned the applicant’s inability to recall the name of the church in [Suburb 2] if he regularly attended it. He said he did attend the church regularly and the name was something like [church name][11] but as he was not sure he did not want to provide its name. He added that he used to attend the mass with a friend, a girl, who pushed him to go. Questioned further about his religious practice in Australia, the applicant stated that he had attended Sunday mass regularly since 1996, rarely failed to attend Sunday mass because he was a believer and recalled attending the [Suburb 2] church from 1998 when he met a cousin who took him with her. Asked how he practised his faith other than attending mass, the applicant replied that he only had time to attend Sunday mass and spent more time on the two biggest celebrations of Christmas and Easter. Asked why Christmas and Easter are the biggest celebrations, the applicant replied that they are most important to his religious beliefs because it is the birth Jesus and when Jesus sacrificed for humanity. Asked whether he participated in the sacrament of confession or reconciliation, he said he did once he began attending the [Suburb 2] church. The applicant’s testimony demonstrated a familiarity with what I understand to be the beliefs and practices of Catholicism. I thus accept that he is Catholic and that he had practised his religion in Australia for reasons other than the purpose of strengthening his claim to be a refugee. However, his inability to name the [Suburb 2] church at the previous hearing and his uncertainty about the name of the church when he testified before me leads me to conclude that he has been far from a regular churchgoer. If he rarely missed Sunday mass at the [Suburb 2] church since he began attending the church in 1998 (or 1996 as stated in the post-hearing submission) I expect he would have been able to easily recall the precise name of the church. I have concluded that the applicant has exaggerated his church attendance here and only attended church and practised his religion in Australia infrequently.  

    [11] [Corrected church name] according to the migration agent’s post-hearing submission.

1. Asked what serious harm or significant harm he would face for reasons of his religion if he returned to Vietnam, the applicant told me that since childhood he witnessed that the Communist government was scared of the big religions because they could not administer them and they proposed that his family give up their religion. I noted that was some time ago and put to him the information from the DFAT Report which indicates that the Vietnamese Constitution now provided for freedom of religion and belief, Catholics have full government registration and the situation for Catholics has improved in recent years, Catholics can now practice freely at registered churches and have access to Bibles, and that religious practice is only an issue when it is seen as a challenge to the authority or interests of the CPV.[12] The applicant responded that the Vietnamese government recognised freedom of religion on paper but what they did was a different matter. He mentioned, for example, that they conducted surveillance so it was easy for them to harm people opposed to them, and they harmed Catholics, especially those who opposed violations of Catholic property and land. He said that as a Catholic engaged in political activity against the regime he would face harm.

   [12] DFAT Report at [3.6], [3.9]-[3.10].

2. The information from DFAT as well as the information in sources cited in the post-hearing submission regarding Catholics and Catholic clergy who have been subjected to adverse treatment in Vietnam are those involved in unregistered churches and more particularly those engaged in actual or perceived political activism challenging the authority, interests or policies of the government such as land disputes and the toxic spill caused by Formosa Plastics in 2016.[13] I find that as the applicant has infrequently attended church in Australia, if he returns to Vietnam he can and will practise his religion and religious beliefs by infrequently attending a registered Catholic church. He did not claim that he would not or did not wish to attend a registered Catholic church. The applicant has not claimed nor does the evidence before me indicate that he would face serious harm or significant harm in Vietnam due to his limited church attendance in Australia. Further, I find that the applicant will not engage in any activity in connection with his religion or church that would be regarded as being anti-government because, firstly, his religious practice in Australia has been limited. Secondly, I have found that the applicant will not express any actual or perceived political opinion or engage in any actual or perceived political activity in Vietnam in the reasonably foreseeable future in a public manner which will bring him to the adverse attention of the Vietnamese authorities. Thirdly, if the applicant believed he would engage in conduct in connection with his religion which would attract adverse attention from the Vietnamese authorities I expect he would have expressly made a claim based on religion in his protection visa application, would not have waited to be asked whether he feared harmed due to his religion by the previous member before making a claim based on religion and would have applied for a protection visa sooner.

   [13] DFAT Report at [3.31] and sources cited in post-hearing submission at footnotes 5, 6 and 7.

3. I thus find that the applicant will not come to the adverse attention of the Vietnamese authorities due to his religious practice in Australia and/or as a Catholic who will practice his religion and religious beliefs in Vietnam by infrequently attending a registered Catholic church. I therefore find that there is not a real chance that the applicant will face persecution or significant harm as defined in s.36(2A) for reasons of religion in Vietnam.

   Failed asylum seeker claims

4. In oral submissions at the end of the hearing the applicant’s migration agent stated that the applicant would face harm as a failed asylum seeker if he returned to Vietnam. I put to the applicant that information before me[14] did not indicate there was a real chance he would face serious harm or significant harm if he returned to Vietnam as a failed asylum seeker. I refer to that information from the DFAT report below. The applicant replied that it depends as cases are different. He said some failed asylum seekers were put in prison and that had happened to a family sent back in 2016. However, the mere fact some failed asylum seekers have been imprisoned on return to Vietnam does not indicate that they were imprisoned because they were failed asylum seekers and not some other reason. As indicated below, there is evidence that failed asylum seeker who engage in people smuggling face prosecution for reasons of that activity rather than because they are failed asylum seekers.  He added that he may face revenge because of his parents’ background and mentioned other matters such as not having siblings around, that he was supposed to inherit his parents’ property but it was taken by the authorities and they would not return it to him, and referred to his political activities in Australia. Those matters did not indicate that the applicant would be harmed if he returned as a failed asylum seeker.

   [14] DFAT Report at [5.15]-[5.17].

5. The failed asylum seeker claim was expanded upon in the post-hearing submission. It was claimed that the applicant would be harmed due to his ‘long stay in Australia seeking asylum from harm at the hands of the Vietnamese state’ and his ‘long detention in Australia and his status as a failed asylum seeker’.  The submission did not expressly state how the length of the applicant’s stay in Australia or the length of his detention was relevant to the failed asylum seeker claim or gave rise to a real chance of persecution or significant harm if the applicant returned to Vietnam as a failed asylum seeker. It was however submitted that Article 91 of the Vietnamese Penal Code criminalises fleeing abroad or defecting overseas with a view to opposing the people’s administration, Article 275 of the Code criminalises organising others to flee and stay aboard, and since 2015 at least eight failed asylum seekers have been imprisoned for attempting the journey to Australia. It was then submitted the applicant will be arrested and interrogated on return, his political activities in Australia uncovered if not already known to the Vietnamese authorities and thus he faces a real chance of being subjected to serious harm or significant harm due to his anti-regime activities, actual political opinion, religion, membership of a particular social group of ‘people without ho khau in Vietnam’ and ‘failed asylum seekers in Vietnam’, and that his profile is such there was the possibility that he would be detained and charged with offences against the State. As no offences against the State other than articles 91 and 275 of the Penal Code have been referred to I presume that is what is meant.

6. Having considered the evidence and submissions I find that even if the Vietnamese authorities become aware of the applicant’s long stay in Australia seeking asylum from harm at the hands of the Vietnamese state, his long detention in Australia, and that he is a failed asylum seeker there is not a real chance that the applicant will be prosecuted for offences against the State nor subjected to serious harm or significant harm as defined in s.36(2A) for any of those reasons or combination of reasons.

7. The evidence before me does not indicate that the length of the applicant’s stay in Australia or the length of his detention in Australia would be viewed adversely by the Vietnamese authorities. This appears mere assertion or speculation.

8. Further, the evidence before me indicates failed asylum seekers are not prosecuted under Article 91 but those who organise others to flee Vietnam do face prosecution (presumably under Article 275). The news report cited in the submission states that four out of 46 asylum seekers who were intercepted on their way to Australia by boat and returned to Vietnam were sentenced to gaol for organising an illegal escape overseas. The news report does not indicate that the other 42 failed asylum seekers were charged with any offence or harmed on their return. The article thus indicates that four failed asylum seekers have been sentenced to gaol because they organised others to illegally flee Vietnam and not because they were failed asylum seekers. DFAT reports that it is unaware of any cases where Article 91 has been used against failed asylum seekers, returns to Vietnam are usually done on the basis that failed asylum seekers will not face charges as a result of having made asylum applications, and the Vietnamese authorities are interested in those suspected of being involved in organising people-smuggling.[15] The evidence before me does not indicate that the nature of the claim for asylum determines whether a failed asylum seeker will face harm on return to Vietnam. For example, the information does not indicate that a person who sought asylum ‘from harm at the hands of the Vietnamese state’ would face harm on return for that reason.

   [15] DFAT Report at [5.15], [5.17].

9. It is not claimed nor is there evidence before me that the applicant has organised others to flee Vietnam.  On the evidence before me I do not believe there is a real chance that the Vietnamese authorities would suspect that the applicant has engaged in such activity due to the length of his stay in Australia, his immigration detention or any other reason.

10. No basis for the submission that the applicant will be arrested and interrogated on return is provided in the submission.  While I note that DFAT reports that some returnees can be briefly detained and interviewed, long-term detention, investigation and arrest is conducted in relation to those suspected of involvement in organising people smuggling operations.[16] As stated above I do not believe the applicant will be suspected of such activity. I deal elsewhere in my decision with the claims relating to the applicant’s activities, political opinion, religion, and household registration. In light of those findings, I do not accept that the applicant has a profile which would bring him to the adverse attention of the Vietnamese authorities on his return resulting in serious harm or significant harm as defined in s.36(2A).

    [16] DFAT Report at [5.17].

    Household registration claim

11. According to DFAT, Vietnam has a system of household registration known as ho khau which affects a citizen’s access to public services.[17] The current law relating to household registration provides for two categories of household registration, permanent and temporary, with temporary registrants being able to acquire permanent registration after between one to three years of continuous residence depending upon the location.[18]

    [17] DFAT Report at [5.23]-[5.24].

    [18] DFAT Report at [5.23].

12. The claims, evidence and submissions made by the applicant and his migration agent about household registration were not very clear. The applicant did not make any claim in relation to household registration until the previous member put to him at hearing that he would have lost his household registration in Vietnam given he had been in Australia for some time but according to information she had he could re-register on return and thus access government services. The applicant did not agree that he could re-register and said he would not be given peace with his family and personal history. At the end of the second day of hearing before me the migration agent submitted that the applicant may not be able to obtain a household registration ‘card’. I asked the applicant why he may not be able to obtain household registration upon returning to Vietnam given he was a Vietnamese citizen. He replied that having lived overseas for a long time he would have to apply from the beginning and he would be sent somewhere remote. That does not indicate he would not obtain it due to his family or personal history.

13. The post-hearing submissions regarding household registration seem at time to use the terms ho khau, permanent registration, household registration and household registration documentation/books interchangeably and inconsistently. Further, there was a significant reliance on sources of information which predate the laws on which the current household registration system is based. In summary, the submissions seem to be that ‘family’ registration of Vietnamese nationals who leave the country for more than 12 months is automatically cancelled and they become temporary residents, permanent registration may be cancelled if a person has settled abroad, and re-establishing permanent registration involves living in one location for between 12 months and three years. Temporary residents have limited access to public services and face discrimination in the public sector until they establish permanent residency and without household registration (perhaps meant to be permanent registration) individuals are denied public services. It was submitted that the applicant would be unable to obtain ho khau (perhaps meant to refer to permanent registration) for a minimum of 12 months and up to three years if he returned to Vietnam, and the applicant would face serious harm by local authorities due to his family activities and political activities in Australia if he approached them to try to re-register. Thus, it was likely that the applicant would not obtain ho khau and hence would be denied access to basic services which would threaten his capacity to subsist, he could not work legally, live anywhere legally, vote or marry. He would effectively be an alien. In the conclusion it was submitted that there was a real chance that the applicant would face serious harm and significant harm including being incarcerated due to his inability to obtain ho khau in 12 months, three years or at all.

14. Having regard to the applicant’s particular circumstances as well as sources cited in the post-hearing submission and the previous member’s decision, I do not accept that the applicant faces a real chance of serious harm or significant harm for reasons related to household registration. In reaching that conclusion I have given considerable weight to the 2016 World Bank Group and Vietnam Academy of Social Sciences Report on the household registration system (the Household Registration Report)[19] which is cited and relied upon in the post-hearing submission. Its authors are credible, and the report is detailed and based on recent research.

    [19] World Bank Group and Vietnam Academy of Social Sciences, Vietnam’s Household Registration System, Hong Duc Publishing House, June 2018 (‘Household Registration Report’).

15. According to the Household Registration Report, the household registration system in Vietnam known as ho khau was established by a decree in 1964 as a system of economic management and internal security which required every citizen to be registered as a resident in one household in the location of their permanent residence and movement could only take place with the permission of the authorities.[20] That law was superseded by the Law of Residence which was passed in 2006 and came into effect on 1 July 2007.[21] Vietnam’s current system of household registration is based on the Law of Residence as modified in 2013 and 2014, and provisions in the 2012 Capital City Law.[22] The Law of Residence created two categories of residence: temporary and permanent, and significantly reduced the conditions for obtaining permanent residency.[23] This information is consistent with the information in the DFAT Report which I have referred to above.

    [20] Household Registration Report, at [4]-[5].

    [21] Household Registration Report, at [5]; Article 41 of the Law of Residence (source for the Law of Residence is cited in the post-hearing submission).

    [22] Household Registration Report at [5], [11]-[13].

    [23] Household Registration Report at [11].

16. According to Article 2 of the Law of Residence, the law applies to Vietnamese citizens and overseas Vietnamese people who still hold Vietnamese nationality and return to live in Vietnam. According to Article 22 of the law, a person who has ‘settled abroad’ shall have their permanent household registration deleted. Given the applicant is a Vietnamese citizen who left Vietnam almost 24 years ago I find there is a real chance that the Vietnamese authorities would regard the applicant as having settled abroad and thus, pursuant to Article 22 of the Law of Residence, that his permanent household registration has been deleted. However, I find on the basis of the information cited in the previous member’s decision which I have read,[24] that the applicant can apply for household registration if he returns to Vietnam.

    [24] See information and sources cited in Tribunal decision record for case number 1614427, pp. 20–21 under the heading ‘Household Registration (Ho Khau)’.

17. As I have found that the applicant has not nor would be of adverse interest to the Vietnamese authorities in the reasonably foreseeable future for any of the reasons he has claimed including his family history and political activities in Australia, I do not accept that the applicant will be refused household registration nor would have difficulties obtaining household registration for those reasons. The applicant asserts that he may be sent somewhere remote. I find there is no evidence to support such an assertion. Further, I find that merely having to apply for household registration ‘from the beginning’ as mentioned at hearing, does not rise to the level of serious harm nor does it amount to significant harm as defined in s.36(2A). I find that as a Vietnamese citizen he will be granted household registration, either temporary or permanent depending on where he settles upon return to Vietnam. I thus do not accept the submission that the applicant will be denied public services or be unable to work, live anywhere legally, marry or vote or effectively be an alien, incarcerated or harmed in any other way because he will not be able to obtain household registration or household registration documentation on his return to Vietnam.

18. Further, I do not accept that the applicant’s capacity to subsist will be threatened or that he will face any other harm amounting to serious harm or significant harm if he has temporary registration for a period up to three years while awaiting permanent registration. In reaching that conclusion I have relied upon information in the Household Registration Report. The report states that while temporary registrants are largely excluded from the public sector, they are not excluded from private sector employment and no longer face other disadvantages in the labour market.[25] According to the applicant’s protection visa application and the evidence he gave the delegate and the previous member, he supported himself in Australia from 1996 until his immigration detention in 2015 by working and living modestly. He has not claimed that he would not have the capacity to work if he returned to Vietnam. Thus, I find that the applicant will be able to work in the private sector in Vietnam as a temporary registrant. In addition, according to the Household Registration Report, the wage premium which was previously associated with permanent registration disappeared by 2015 and average wages, expenditures and income of temporary registrants is now similar to or slightly higher than those of permanent registrants.[26] I thus find that not being able to work in the public sector for a period of three years would not threaten the applicant’s capacity to subsist and does not amount to serious harm or significant harm as defined in s.36(2A).

    [25] Household Registration Report, p. ix, and at [39], [41], [43]. 

    [26] Household Registration Report, p. xi, and at [45]-[46].

19. In terms of access to basic services, the Household Registration Report does not indicate that temporary registrants are denied access to all public services. Instead it states that temporary registrants face limitations in access to some public services and hence may have to pay more for public services than permanent registrants.[27] Further, gaps in access to public services between permanent and temporary registrants are less severe than previously believed, and the limitations for temporary registrants are particularly with regard to public schools, health insurance for young children and basic services such as motor vehicle registrations.[28] The first of these two do not apply to the applicant who is an adult. As the applicant will be able to work in the private sector, the wages and expenditure of temporary and permanent registrants are similar,[29] and he will only have himself to support I find that the applicant will be able to meet his living expenses even without the subsidies and government financial support provided to permanent residents,[30] and pay for public services he will need. According to the Household Registration Report, a common complaint of temporary registrants is their inability to use basic government document procedures in their place of residence.[31] However, a recent legal change has eased the process of civil registration (as distinct from household registration) in the place of residence.[32] The Household Registration Report notes that temporary registrants are much less likely to be involved in local organisations and social activities (other than trade union participation) but it is not clear if that is a consequence of temporary registration status.[33] On the evidence before me and having regard to the applicant’s particular circumstances I find there is not a real chance that the applicant will face discrimination or harm as a temporary registrant that would threaten his ability to subsist, rise to the level of serious harm nor amount to significant harm as defined in s.36(2A).

    [27] Household Registration Report, pp. ix and at [25], [60], [69].

    [28] Household Registration Report, p. ix.

    [29] Household Registration Report, at [41], [42], [45].

    [30] Household Registration Report, at [76], [77].

    [31] Household Registration Report, at [81].

    [32] Household Registration Report, at [82].

    [33] Household Registration Report, at [70]-[71].

1. In light of the above findings, I find that there is not a real chance that the applicant will face serious harm or suffer significant harm as defined in s.36(2A) in Vietnam for reasons related to household registration.

   Other claims

2. The applicant and his migration agent have also claimed largely it seems in connection with the issue of the applicant’s household registration that the applicant has no family or network to support or protect him in Vietnam. It is plausible that given the applicant’s long absence from Vietnam he has no family or network in Vietnam, that he will need to find accommodation and employment and re-establish himself there. However, I do not accept that the applicant faces a real chance of persecution or significant harm in Vietnam thus he does not require protection from his family or a support network.

3. The applicant is a mature-aged adult who 20 years ago left his close family in Vietnam to come to Australia, where he has been able to work, live and support himself, and make friends/connections here as evidenced by the people who wrote letters in support of his application and the people he consulted about applying for protection. Secondly, as the applicant would be returning to his country of origin he would be returning to a culture that is familiar to him, a country where he can speak the language and where he spent the first 30 years of his life. I thus find that the applicant is not a vulnerable person who requires a family or network to support him and to re-establish himself in Vietnam. I further find that the applicant is capable of finding accommodation and work and re-establishing himself in Vietnam without any immediate support from family or a network and that he could attempt to re-connect with his family if he wished and could develop a network of support in Vietnam in the reasonably foreseeable future as he has done in Australia.

4. I therefore conclude that not having a family or support network, home or job to return to in Vietnam does not amount to either serious harm or significant harm as defined in s.36(2A) in the applicant’s case.

   Findings on protection criteria

   Refugee criterion

5. On the basis of the findings I have made that the applicant does not face a real chance of serious harm in the reasonably foreseeable future if he returns to Vietnam for the reasons he has claimed, considered individually and cumulatively, I find that the applicant does not have a well-founded fear of persecution within the meaning of s.5J. As stated above, in accordance with s.5J(6) I have disregarded the applicant’s attendance at the public events witnessed by [Mr B] and [Mr A] in determining whether he had a well-founded fear of persecution. Therefore the applicant is not a refugee as defined in s.5H(1) and I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection criterion

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). On the basis of the findings I have made above that the applicant does not face a real chance of significant harm as defined in s.36(2A) in Vietnam, considered individually and cumulatively, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Family member criterion

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

   DECISION

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

   Mila Foster
   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.

   …