1724982 (Refugee)
[2022] AATA 3841
•16 August 2022
1724982 (Refugee) [2022] AATA 3841 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Nikhom Wong (MARN: 1171875)
CASE NUMBER: 1724982
COUNTRY OF REFERENCE: Vietnam
MEMBER:Jason Pennell
DATE:16 August 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 August 2022 at 8.55am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – fear of serious harm due to TNHH Formosa polluting incident – mother’s resulting cancer – food supplies polluted – resulting financial difficulties – no evidence of participation in protest or anti-government activities – no evidence of how polluting incident would lead to persecution – no systematic and discriminatory conduct toward applicant – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
CASES
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1
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 and Border Protection on 20 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Vietnam applied for the visa on 5 April 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
3.The applicant appeared before the Tribunal on 9 August 2022 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video or telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
5.The applicant was represented in relation to the review.
Criteria for a protection visa
6.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (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.
7.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). 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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S Claims and evidence
Applicant’s identity
The applicant claims that she was born on [date] in Da Nang, Vietnam. She claims to be of the Kinh ethnicity and a citizen of Vietnam.[1] The applicant provided the Department with an uncertified copy of the biodata page of her Vietnamese passport.[2]
[1] Part C - Application for a protection visa application form dated 6 April 2017, Department eFile [number]
[2] Applicant’s uncertified biodata page of her Vietnamese passport, Department eFile [number]
The document provided by the applicant is consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Vietnam and as such her protection claims will be assessed against Vietnam as the country of reference and ‘receiving country’ respectively.
Migration history[3]
[3] Department of Home Affairs’ Mainframe Movement Records, Tribunal file 1724982, Doc ID 9839628
The applicant first arrived in Australia [in] February 2009 on a student visa (Subclass 573) (‘the student visa’) and applied for a protection visa on 5 April 2017. The applicant’s migration history was summarised in the delegate’s decision as follows:
Date
Event Details
[February] 2009
Applicant arrived in Australia on Student visa (Subclass 573)
[September] 2011
Applicant departed Australia on Student visa (Subclass 573)
[October] 2011
Applicant arrived in Australia on Student visa (Subclass 573)
2 May 2012
Applicant granted Student Further Stay Higher Education Sector visa (Subclass 573)
[January] 2014
Applicant departed Australia on Student visa (Subclass 573)
[March] 2014
Applicant arrived in Australia on Student visa (Subclass 573)
17 October 2014
Applicant granted Student Further Stay Higher Education Sector visa (Subclass 573)
[February] 2015
Applicant departed Australia on Student visa (Subclass 573)
[March] 2015
Applicant arrived in Australia on Student visa (Subclass 573)
[July] 2015
Applicant departed Australia on Student visa (Subclass 573)
[August] 2015
Applicant arrived in Australia on Student visa (Subclass 573)
[April] 2016
Applicant departed Australia on Student visa (Subclass 573)
[May] 2016
Applicant arrived in Australia on Student visa (Subclass 573)
27 February 2017
Applicant’s Student visa (Subclass 573) cancelled under s 116(1)(b)
28 February 2014 –
4 April 2017
Applicant unlawful for 1 month and 7 days
5 April 2017
Applicant lodged Permanent Protection visa (Subclass 866) application
7 April 2017
Granted Bridging visa C
Applicant’s claims for protection
The applicant’s claims for protection were contained in a statement attached to her protection visa application together with an English translation.[4] The delegate summarised the applicant’s claims as follows:[5]
[4] Part C - Application for a protection visa application form dated 6 April 2017, Department eFile [number]
[5] Protection Visa Decision Record dated 20 September 2017 at p.2 AAT File:1724982, Doc ID: 3726285
· The applicant returned to Vietnam in April 2016 when her mother was diagnosed with [cancer].
· She saw that the Central Coast had been polluted by lead from the TNHH Formosa Steel Corporation in Ha Tinh, resulting in the death of fish on a massive scale and food contamination.
· The Communist regime in Vietnam does not harm citizens directly but kills citizens slowly.
· The food is full of toxic chemicals, the sea is polluted, underground water sources are contaminated and the air polluted. There will be more pollution when the power plant is built.
· The applicant believes her mother cancer was caused by these pollutants.
· When there is an incident, the local government covers it up and provides minimal compensation which leaves people in poverty.
· The applicant cannot live in a country with such an administrative system.
· The applicant family financial situation has been adversely affected by her mother’s illness. The applicant had to cease her studies in 2016 resulting in the cancellation of her visa on 27 February 2017.
· If the applicant does not ‘die for the war’ in Vietnam, she will die from disease caused by ‘food environment, weather surrounding me each day.’
Documentation
Apart from the uncertified copy of the biodata page of her Vietnamese passport,[6] and her claim for protection contained in Form 866C, the applicant has not provided any further supporting documentation to the Department in support of her claim for Australian protection.
[6] Applicant’s uncertified biodata page of her Vietnamese passport, Department eFile [number]
Applicant’s evidence
The applicant claims that she was born on [date] in Binh Thuan province, Da Nang, Vietnam. She claims to be of the Kinh ethnicity and a citizen of Vietnam.[7] The applicant claims that she is a Buddhist and can speak, read and write in Vietnamese and English.[8]
[7] Part C - Application for a protection visa application form dated 6 April 2017, Department eFile [number]
[8] ibid
The applicant’s evidence was that her father continues to live in Vietnam. Her mother passed away in or about 2016. Her father has remarried and now has another family. She continues to have regular contact with her father by telephone. The applicant has a brother who continues to live in Vietnam. He is married with two children, a boy and a girl, and [works].
The applicant completed her primary and secondary schooling in Vietnam in [year]. The applicant attended primary school at [School] in Binh Thuan from [year range]. She then completed years [grades] at [high school] in Binh Thuan and finally completed years [grades] at [a second high school] in Ho Chi Minh [during year range].[9]
[9] ibid
The applicant’s evidence was that she travelled to Australia in 2009 for the purposes of improving her English. The applicant studied English and a Diploma [at] [an educational institute] in Melbourne from 2009 to 2011. In 2012 the applicant enrolled in [an] Institute in Melbourne to study a Certificate IV in [a course]. In 2014 the applicant then enrolled in an Advanced Diploma of [this] course at [another] College in Melbourne. In 2015 the applicant enrolled in a Diploma of [a different course] at [another] Institute. Finally, the applicant enrolled in a Diploma of [another course] at [a different institution] in 2016.
In or about 2016 the applicant’s mother was diagnosed with stage [cancer].[10] As a result, the applicant returned to Vietnam to visit her mother. The applicant claims that while she was visiting her mother, she witnessed the area close to where her family lived, the central coast of Vietnam, polluted by lead by the TNHH Formosa Steel Corporation in Ha Tinh.[11] The applicant’s evidence was that the pollution caused the fish to die on a ‘massive scale’ and contaminated local food. The applicant claims that food is full of toxic chemicals, the sea is polluted, the underground water source contaminated, and the air polluted. The applicant claims that in the future there will be more pollution when the power plant is fully operational. The applicant claimed that no matter how wealthy a person is in Vietnam it is unavoidable to drink the same water and breathe the same air.[12] As a result, she claims this is the reason why her mother contracted cancer together with thousands of other people.[13]
[10] Applicant’s statement attached to Part C - Application for a protection visa application form dated 6 April 2017, Department eFile [number]
[11] ibid
[12] ibid
[13] ibid
The applicant claims that whenever there is an incident in Vietnam the local government covers it up by protecting those responsible and disregarding any compensation of the victims of the pollution.[14] As a result, people are forced to live in poverty.[15]
[14] ibid
[15] ibid
The applicant claims because of her mother’s poor health, her family’s financial situation deteriorated.[16] As a result, the applicant no longer had the financial capacity to study in Australia. Accordingly, she was forced to stop her studies leading to her student visa being cancelled on 27 February 2017.[17]
[16] ibid
[17] ibid
The applicant’s evidence was that when she found out that she was not able to remain in Australia she became worried about returning to Vietnam as she knows that it is no longer safe for her to return. The applicant claims that if she does not die from war, she will certainly die from a severe disease caused by the pollution in the area.[18]
[18] ibid
The applicant claims that she will be seriously or significantly harmed if she is returned to Vietnam by reason of the pollution caused by the TNHH Formosa Steel Corporation in Ha Tinh.
COUNTRY INFORMATION
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has had regard to the country information assessments prepared by the DFAT, being the DFAT report on Vietnam dated 11 January 2022 (the DFAT Report). In particular, the Tribunal has considered the relevant country information from the DFAT Report as set out in ‘Annexure A’ of these reasons.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[19] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[20]
[19] Section 5AAA of the Act
[20] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.[21]
[21] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[22] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
Accepted facts
[22] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019)
Based on the applicant’s evidence and the documentary evidence provided to the Department and the Tribunal, the Tribunal finds that:
(a)The applicant was born on [date] in Binh Thuan province, Da Nang, Vietnam.
(b)The applicant is ethnically Kinh and is a Buddhist.
(c)The applicant speaks, reads and writes in Vietnamese and English.
(d)The applicant’s mother died in or about 2016.
(e)The applicant’s father remains living in Vietnam.
(f)The applicant has a brother who is married and has two children that continues to live in Vietnam.
(g)The applicant is not married and does not have children.
(h)The applicant completed primary and secondary school in Vietnam.[23]
(i)The applicant’s evidence was that she travelled to Australia in 2009 for the purposes of improving her English.
(j)The applicant studied English[and three diplomas] in Australia as claimed.
[23] ibid
Applicant’s refugee claim
Relevant grounds
The applicant did not specifically submit that she fell within the scope of s 5J(1)(a) of the Act. Nevertheless, it was open to her to claim that she fell within s 5J(1)(a) of the Act by reason of her membership of a particular social group (PSG) being a person who will suffer serious harm as a result of the pollution caused by TNHH Formosa if she returns to Vietnam.
Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[24] When a person claims to fear being persecuted by reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:
[24] Applicant S v MIMA (2004) 217 CLR 387
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.
Therefore, to be considered a member of a PSG under the Act it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or the characteristic is fundamental to a member’s identity or conscience or distinguishes the group apart from society.[25] In this case the Tribunal has some doubt that being seriously harmed by the pollution caused by TNHH Formosa upon her return to Vietnam constitutes a characteristic that can be described as innate or immutable or that it is a characteristic that is fundamental to the applicant’s identity or conscience as required under s 5L(c) of the Act. Nevertheless, the Tribunal does accept that it may be described as a characteristic that distinguishes the group from the rest of society. As such, the Tribunal accepts that the applicant is a member of a PSG as claimed.
Applicant’s well-founded fear
[25] Section 5L of the Act
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
The criterion in s 5J(1)(a) contains a subjective requirement that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[26]
[26] Chan Yee Kin v MIEA (1989) 169 CLR 379
In this case, the applicant claims that she fears being seriously harmed as a member of a PSG if she is returned to Vietnam by reason of the pollution caused by TNHH Formosa on the central coast of Vietnam. The Tribunal accepts that the applicant holds a subjective fear of being harmed if she is returned to Vietnam by reason of the pollution. Nevertheless, for the reasons expressed below the Tribunal finds that the applicant does not have an objective fear of being harmed by reason of pollution as claimed.
Nevertheless, pursuant to s 5J(4)(c) of the Act any persecution suffered by the applicant for any reason detailed in s 5J(1)(a) of the Act must involve systematic and discriminatory conduct. For the reasons expressed below, the Tribunal finds that any harm that the applicant may suffer because of TNHH Formosa polluting the central coast of Vietnam does not involve systematic and discriminatory conduct as required by s 5J(4)(c) of the Act.
Applicant’s claim
The applicant claims that there is a real chance she will be seriously harmed as a result of the pollution caused by the TNHH Formosa Steel Corporation in Ha Tinh. The applicant claims that the food is full of toxic chemicals, the sea is polluted, underground water sources are contaminated, and the air is polluted. The applicant fears that there will be more pollution resulting in the death of fish on a massive scale and food contamination. The applicant did not provide any specific details of the pollution caused by TNHH Formosa Steel Corporation or how it had affected her health. In fact, the applicant’s evidence was that she was currently in good health. In any event, there was no evidence as to how the actions of TNHH Formosa would cause the applicant to be persecuted or how such persecution involved systematic and discriminatory conduct toward the applicant.
The country information reports[27] that in early April 2016, unprecedented numbers of dead fish appeared along the central Vietnamese coast. Over 100 tons of dead fish were collected causing the then Prime Minister of Vietnam, Xuan Phuc Nguyen, to describe the event as ‘the most serious environmental incident Vietnam has faced.’ Consistent with the residents’ claims, a government investigation revealed that the incident was caused by pollution from a steel plant in Ha Tinh province, owned by Taiwan-based Formosa Plastics Group’s local affiliate, Hung Nghiep Formosa Ha Tinh Steel Corp.[28] It was found that TNHH Formosa’s steel plant was responsible for killing the fish by discharging industrial waste into the ocean, which contained harmful chemicals such as phenol, cyanide and iron hydroxides.[29]
[27] The Diplomat, ‘It’s Official: Formosa Subsidiary Caused Mass Fish Deaths in Vietnam’ 1 July 2016 by Shannon Tiezzi, < ibid
[29] ibid
It’s reported[30] that Formosa’s $10.6 billion steel complex is one of the largest foreign investments in Vietnam and includes a steel plant, a power plant and a deep seaport. The Vietnamese government in the hope of boosting economic growth and reducing poverty, has overseen an increase of foreign investment of approximately $70 billion in the past decade. However, it’s reported[31] that the Vietnamese community has become increasingly aware of and concerned by the environmental and human costs of such rapid development.
[30] The Guardian, ‘Vietnam blames toxic waste water from steel plant for mass fish deaths’ dated 1 July 2016, < ibid
TNHH Formosa accepted responsibility for the incident[32] and pledged to pay $11.5 trillion Vietnamese dong ($500 million) in compensation for economic losses and to treat the pollution. As part of the compensation package provision was made to assist local fishermen to find new employment. This was taken as an indication that the marine life may never recover.[33] While the compensation money was provided for a clean-up and to support the people along the coasts whose livelihoods were destroyed, recently critics have claimed that the amount of compensation has not been adequate with many affected having sort out compensations through the Taiwanese courts.[34]
[32] ibid
[33] ibid
[34] Radio Free Asia, ‘Vietnam ministry proposes ending stricter oversight of Formosa steel plant’, dated 11 July 2022, <>
In April and May 2016 there were mass protests in major Vietnamese cities over the incident. The government was accused of not responding quickly enough to the crisis and of ‘looking the other way’ in the interest of maintaining investment in the steel business. It was reported that in May 2016, Formosa Ha Tinh Steel was ‘considering whether to raise its investment in TNHH Formosa from $10.5 billion to $28.5 billion’.[35] The protests were marred by arrests and violence but are credited with the government undertaking an emergency response.
[35] Bloomberg, ‘Fish Death Crisis Prompts Vietnam Waste Water Probe’ by Mai Ngoc and Yu-Huay Sun dated 4 May 2016, <>
At the time a Vietnamese fishing industry group stated that it was positive that the government was holding TNHH Formosa to account but said much more needed to be done to restore the health of the environment in the four affected provinces Ha Tinh, Quang Binh, Quang Tri and Thua Thien Hue. A recent report[36] states that the Vietnamese government was proposing to end the heightened oversight of TNHH Formosa, despite ongoing concerns among residents. The ministry claimed that the company had addressed and repaired the detrimental impacts of the spill. Nevertheless, environmental experts and residents are objecting to the plan, fearing additional environmental damage by the plant if the current level of oversight is diminished.[37] It’s reported[38] that one woman in the local area claimed that she had served a jail sentence because of demonstrating against Formosa following the spill. It’s reported that she claimed that almost half of the villagers in the area where she lives have developed health ailments from inhaling smoke and foul-smelling gas emitted by the plant. It’s claimed[39] that residents do not dare to discuss the consequences for fear of being sent to jail. Local authorities imprisoned many of the villagers who protested the factory after the spill. However, it was noted that the action and protests by people in response to the disaster were responsible for the government taking action against the company and forcing it to pay the compensation.[40] Nevertheless, the crackdown on protests by the government included the arrest of Nguyễn Văn Hoá, a journalist who covered the Formosa protests.[41] He was charged for ‘conducting propaganda against the state’ under Article 88 of the Vietnamese Penal Code and sentenced to seven years prison.[42] In addition another journalist, Le Dinh Luong was arrested for ‘activities attempting to overthrow the state’ in July 2017 and sentenced to 20 years imprisonment.[43] There was no evidence that the applicant has been involved in any protests against the Vietnamese government due to the disaster or that she had been proactively working against the government as a result of the environmental disaster caused by TNHH Formosa.
[36] Radio Free Asia, ‘Vietnam ministry proposes ending stricter oversight of Formosa steel plant’, dated 11 July 2022, < ibid
[38] ibid
[39] ibid
[40] The Guardian, ‘Vietnam blames toxic waste water from steel plant for mass fish deaths’ dated 1 July 2016, < Radio Free Asia, ‘Vietnam Activist Charged with Abusing Democratic Freedoms’ dated 2 March 2017, < BBC News, ‘Vietnamese blogger environmental reports’ dated 28 November 2017, < Reuters, ‘Vietnam sentences activist to 20 years prison amid dissent crackdown’ dated 16 August 2018, <>
Therefore, based on the available country information the Tribunal accepts that there was an environmental disaster caused by TNHH Formosa in or about April 2016. The Tribunal notes that responsibility for the disaster was accepted by the company and that it paid compensation for the damage caused to the local people and the environment. While the government did crack down against protestors and dissentients who criticised the government in relation its handling of the disaster, the applicant did not take part in any such protests and did not publicly express a voice against the government of Vietnam. Accordingly, the Tribunal finds that there is no real chance she will be seriously harmed as a protestor against the government in relation to the environmental disaster caused by TNHH Formosa.
The applicant claims that because of the toxic chemicals that have polluted the sea the food and air are contaminated and as a result she will become sick. She claims that the underground water source has been contaminated. The applicant claimed that no matter how wealthy a person is in Vietnam it is unavoidable to drink the same water and breathe the same air.[44] The applicant fears that in the future more pollution will be created when the power plant is fully operational. The applicant claims that it is the reason why her mother contracted cancer and the reason why she fears that she will become sick if she returns to Vietnam.
[44] Radio Free Asia, ‘Vietnam ministry proposes ending stricter oversight of Formosa steel plant’, dated 11 July 2022, <>
While the Tribunal accepts that TNHH Formosa was responsible for an environmental disaster as claimed, based on the available country information the disaster was not caused with the intention of causing the applicant serious harm. Section 5J(4) of the Act requires that any fear of persecution by a person must be as a result of systematic and discriminatory conduct. Therefore, to be a refugee the persecution claimed must be for the reason of one of the categories in s 5J(1)(a) of the Act.[45] As for systematic conduct, in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 McHugh J when considering the Convention stated:
Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or ‘must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic’. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that an individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person…
[45] A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 223
In this case, the incident caused by TNHH Formosa is a one-off event and does not constitute selective harassment that discriminates for a reason detailed in s 5J(1)(a) of the Act. As a result of the environmental disaster the authorities have forced the company to clean up the environment and to pay compensation for the damage caused. The Tribunal accepts that the amount of compensation may not be adequate to compensate fully those residents affected by the environmental disaster. Nevertheless, the Tribunal notes that separate legal proceedings have been taken out against the company for further compensation to be paid to individuals and groups. The Tribunal also notes that the authorities have maintained controls on the activities of the company since the time of the disaster. While, in recent times, it has proposed that such controls be relaxed, despite concerns of residents, there does not appear to be any action taken by the government of Vietnam which may be considered to have caused the applicant serious harm in a systematic and discriminatory manner.
The Tribunal accepts the applicant’s evidence that her mother was diagnosed with [cancer] in or about 2016 as claimed.[46] However, the applicant did not provide any evidence to the Tribunal as to how the environmental disaster caused by TNHH Formosa was responsible for her mother contracting [cancer]. While the Tribunal accepts that such an environmental disaster may have long-term effects on the health of a population, in circumstances where the applicant’s mother was diagnosed with cancer at or about the time the disaster occurred, the Tribunal has some reservations about the applicant’s evidence that her mother’s condition was caused by the environmental disaster.
[46] Applicant’s statement attached to Part C - Application for a protection visa application form dated 6 April 2017, Department eFile CLF2017/27667
In addition, the applicant claims that her health will suffer if she is returned to Vietnam. The applicant believes that the food and air have been polluted which will cause her to become sick. However, the applicant did not provide any evidence that there was a real chance that her health would suffer if she was returned to Vietnam. In addition, there was no evidence as to the current environmental condition of the area in which the disaster occurred and any affect it may have on the applicant in the event she is returned to Vietnam. That is, there was no evidence that there was a real chance the applicant would suffer serious harm because of the environmental disaster in a systematic or discriminatory manner for the purposes of s 5J(4) of the Act. The incident while tragic to the lives of the local fishermen and the environment more generally, was a one-off incident that occurred without any systematic or discriminatory conduct towards the applicant for the purposes of s 5J(4) of the Act.
In addition, the country information reports that the health expenditure in Vietnam is 5.5 percent of GDP.[47] Economic growth and urbanisation have improved the quality and availability of health services for most of the population.[48] It’s reported[49] that hospitals are arranged on a national, provincial and district level together with private hospitals. They are the primary place of care with most of the population being enrolled in the social health scheme.[50] Therefore based on the country information the Tribunal finds that if the applicant was sick on her return to Vietnam, she would be able to access health care services on the same basis as other citizens of Vietnam. That is, she would not be denied health care services if she is returned to Vietnam on a systematic or discriminatory basis pursuant to s 5J(4) of the Act.
[47] DFAT Report at p.9
[48] ibid
[49] ibid
[50] ibid
Therefore, for the reason expressed the Tribunal finds that there is no real chance the applicant will be seriously harmed because of the pollution caused by the TNHH Formosa Steel Corporation in Ha Tinh if she is returned to Vietnam. In addition, the Tribunal finds that the persecution said to be suffered by the applicant did not constitute systematic or discriminatory conduct towards the applicant for the purposes of s 5J(4) of the Act.
The Communist regime in Vietnam
The applicant claims that the Communist regime in Vietnam does not harm citizens directly but kills them slowly. The applicant based her claim on the fact the environment was damaged by the TNHH Formosa disaster. She claims that the government allowed the disaster to occur to inflict harm on the population. The applicant did not present any evidence in support of her claims.
The country information reports that according to the World Bank between 2002 and 2018 more that 45 million people were lifted out of poverty in Vietnam.[51] The poverty rate fell for 70 percent of the population to below 6 percent. It’s reported[52] that the Vietnamese economy continues to grow and is experiencing a rapid urbanisation and an expanding middle class. The services sector represents the largest part of the economy. The official unemployment rate is approximately 2.4 percent with a very high rate of informal work (76 percent).[53] Given the rapid economic growth the Vietnamese economy has experienced it is perhaps not surprising that the TNHH Formosa environmental disaster occurred. As such, the TNHH Formosa disaster is not an attempt by the authorities to seriously harm the Vietnamese population (or the applicant herself) in a systematic or discriminatory manner, but rather the unfortunate consequence of a developing economy and a government that is keen to raise the living standards of its population. Accordingly, the Tribunal does not accept that the Communist regime in Vietnam kills the citizens of Vietnam slowly as claimed by the applicant. As such the Tribunal finds that there is no real chance of the applicant being harmed because of any attempt by the Vietnamese authorities to harm her ‘slowly’ as claimed if she is returned to Vietnam.
Applicant as a returned asylum seeker
[51] DFAT Report at p.7
[52] DFAT Report at p.8
[53] ibid
During the hearing the applicant claimed that because she has been in Australia for a period, she will not be able to obtain documentation or liberty papers in Vietnam. She claims that she will be detained and punished upon her return to Vietnam as a failed asylum seeker and will be denied any further travel documentation. The Tribunal notes that the applicant departed Vietnam [in] February 2009 and has returned to Vietnam on multiple occasions without any difficulty.
The country information[54] reports that Articles 120 and 121 of the Vietnamese Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. Organisers of such movements face imprisonment of between 5 and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between 3 and 12 years, or between 12 and 20 years in serious cases. Nevertheless, DFAT reports[55] that it is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia. People are returned to Vietnam only on the understanding that they will not face charges because of making an application for protection.[56] A Memorandum of Understanding between the Australian Department of Home Affairs and the Ministry of Public Security, 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’.
[54] DFAT Report at p.33
[55] ibid
[56] ibid
The Tribunal accepts that the applicant will be detained and questioned upon her return to Vietnam and at this time it may become apparent to the authorities that she is a failed asylum seeker. The Tribunal accepts the country information[57] that states that failed asylum seekers will typically face a range of difficulties upon their return such as unemployment or underemployment and access to social services in circumstances where their household registration has ceased. The country information notes that failed asylum seekers are not generally stigmatised as migration has been a feature of Vietnamese life for many decades.[58] There is no evidence that a returned asylum seeker would be denied citizenship.[59] As a result, based on the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Vietnam by reason of her being a failed asylum seeker as claimed.
[57] DFAT Report at p.33
[58] ibid
[59] ibid
Having regard to all the circumstances and findings above, considered individually and cumulatively and having considered s 5J of the Act alongside the available country information, the Tribunal finds that the applicant will not be persecuted in the event that she returns to Vietnam for any reason pursuant to s 5J(1)(a) of the Act. That is, the Tribunal finds that she does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason, and therefore does not have a well-founded fear of persecution.
As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal accepts that the applicant is a citizen of Vietnam and that Vietnam is the ‘receiving country’ for these purposes.
The applicant claims that there is a real risk she will suffer significant harm because of the environmental impact of the TNHH Formosa disaster if she is returned to Vietnam. The types of harm that amount to ‘significant harm’ are defined by s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ in s 5(1) of the Act refer to ‘an act or omission’. As such only an action or a failure to act would fall within the definition, which may be distinguished from a consequence of an act or an omission.[60]
[60] SZRSN v MIAC [2013] FCA 751 at [47]; SZTAL v MIBP [2015] FCCA 64 at [41]
The requirement that there be ‘an act or omission’ means that the types of harm defined as significant harm under the Act require an element of intention. The definition of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act specifically refer to the harm being intentionally inflicted on a person. It has been held that mere negligence will not establish the necessary intention element of any of the relevant definitions in s 5(1) of the Act.[61] Further, to establish the necessary intention, the identification of the individual(s) who will carry out the act or omission is generally required.[62]
[61] SZSPE v MIBP [2013] FCCA 1989 at [68] and [72]; SZSPE v MIBP [2014] FCA 267; SZTUL v MIBP [2014] FCCA 1985 at [31]–[32]
[62] AGH15 v MIBP [2015] FCA 1181 at [31]
The Tribunal has already accepted that the TNHH Formosa disaster occurred as claimed and that there was significant environmental impact on the people of the central coast in Vietnam. However, the Tribunal does not accept that the TNHH Formosa disaster and its subsequent environmental impact was intentional for the purposes of inflicting significant harm on the applicant.
The Communist regime in Vietnam
The applicant claims that the Communist regime in Vietnam does not harm citizens directly but kills them slowly. The applicant based her claim on the fact the environment was damaged by the TNHH Formosa disaster. She claims that the government allowed the disaster to occur to inflict harm on the population. The applicant did not present any evidence in support of her claims. For the reasons stated above and the country information referred to the Tribunal finds that there is no real risk the applicant will be significantly harmed by the Communist regime in Vietnam as claimed.
As a failed asylum seeker
For the reason outlined above the Tribunal finds that if the applicant is removed from Australia to Vietnam as a failed asylum seeker and/or a forced returnee there is no real risk that she will suffer significant harm. The applicant claimed that because she has been in Australia for a period, she will not be able to obtain documentation or liberty papers in Vietnam. She claims that she will be detained and punished upon her return to Vietnam as a failed asylum seeker and will be denied any further travel documentation. However, the Tribunal notes that the applicant departed Vietnam on 28 February 2009 and has returned to Vietnam on multiple occasions without any difficulty.
Based on the country information referred to above and having assessed the applicant’s claim on the basis that she is likely to be stopped and interviewed and have her case examined in detail as a forced returnee, the Tribunal is satisfied that she will not suffer significant harm if she is returned to Vietnam. Accordingly, the Tribunal finds that there is not a real risk of the applicant suffering significant harm by reason of being a failed asylum seeker returning to Vietnam as claimed.
At no stage did the applicant advance any other reason in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk she will suffer significant harm as required by s 36(2)(aa). The Tribunal therefore finds that Australia does not owe her protection obligations pursuant to s 36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
Senior MemberAnnexure A
DEMOGRAPHY[63]
[63] DFAT Report at p.7
2.4Vietnam’s population is about 100 million people. It is a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas. The two largest cities are HCMC with 8.8 million people, and the capital Hanoi with 4.8 million people. The Vietnamese language, based on the Hanoi dialect, is widely spoken throughout the country. For ethnic demography, see Race/Nationality. For religious demography, see Religion.
ECONOMIC OVERVIEW[64]
[64] DFAT Report at p.7
2.5According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation.
Employment and welfare[65]
[65] DFAT Report at p.8
2.6 The official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.
2.7 Vietnam is rapidly urbanising. The services sector has become the largest part of the economy at about 50 per cent of GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce. Some multinational companies looking to diversify their outsourced manufacturing have sought out Vietnam as an alternative location to other countries in the region for manufacturing, creating jobs for young people.
2.8The poor are eligible for a social welfare benefit from 60 years of age with greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector. Given the young population and high rates of informal work, a large number of people are not covered by any pension scheme. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.
2.9Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support. For information on health care subsidies see Health.
Health[66]
[66] DFAT report at p.9
2.13 According to United Nations Development Programme data, life expectancy is 75.4 years (men 71.3 years, women 79.5 years) and health expenditure is 5.5 per cent of GDP (for context: combined men and women’s life expectancy in Australia is 83.4 years and health spending is 9.2 per cent of GDP in Australia). Economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese.
2.14 Hospitals are organised at the ‘central’ (national), provincial and district levels, along with private hospitals that are found in urban areas. Healthcare in rural communities is provided at commune-level health centres. These centres provide basic preventative care, diagnoses and treatments, and refer people on to hospitals. Quality varies from place to place, and some centres are poorly funded and ill-equipped. Distance for people living in remote areas can be a barrier to access. Health centres are usually staffed by nurses and midwives, while some may have doctors. Hospitals are the primary place of care (rather than, for example, a general practitioner’s practice) for many Vietnamese. See also Internal Relocation for information on how place of residence and household registration can affect access to healthcare.
2.15 The vast majority of the population is enrolled in the social health insurance scheme. The poor, ethnic minorities and elderly are fully subsidised, while others pay premiums. Healthcare is not free; a co-payment is required from patients, potentially along with bribes due to corruption. The co-payment is higher in central and provincial-level hospitals, but the level of care there is also higher. This may encourage those who can afford it to bypass lower-level hospitals to receive treatment.
Mental health
2.16 Mental healthcare is available at different levels including at national, provincial and communehospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.
2.17 Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to selfdescribe as mentally unwell and seek treatment.
2.18 The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.
2.19 Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.
TREATMENT OF RETURNEES[67]
[67] DFAT Report at p.32
Exit and entry procedures
5.25Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
5.28Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by DFAT Country Information Report VIETNAM January 2022 33 officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.
Conditions for returnees[68]
[68] DFAT report at p.35
5.29Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality
Attachment – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
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.
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.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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Citations1724982 (Refugee) [2022] AATA 3841
Cases Citing This Decision0
Cases Cited14
Statutory Material Cited0
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20MIEA v Guo [1997] FCA 22