1727812 (Refugee)

1727812 (Refugee) [2023] AATA 4835 (12 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Hoang
CASE NUMBER:  1727812
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tania Flood
DATE:12 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 12 December 2023 at 1:48pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – membership of Viet Tan – political blogger – anti-communist – online activism – association with prominent Viet Tan members – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 19 July 2016. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations.
Based on the below-mentioned submissions made by the applicants and the supporting evidence provided by them the Tribunal was able to make a favourable decision on the papers without requiring the applicants to appear before it.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
MIGRATION HISTORY
The applicants first entered Australia [in] June 2006, holding Temporary Work (Skilled) visas, which were granted on 17 June 2006.
On 26 March 2010, the applicants applied for an Employer Nomination Scheme visa.
They departed Australia [in] February 2011. The first and second named applicants returned to Australia [in] February 2011 and the third named applicant returned [in] March 2011.
On 8 March 2011, the applicants’ application for a subclass Employer Nomination Scheme visa was refused. The applicants appealed the decision to the Migration Review Tribunal on 22 March 2011.
[In] February 2013, the first named applicant departed Australia and returned [in] March 2013.
On 22 November 2013, the Migration Review Tribunal affirmed the decision to refuse to grant the applicants an Employer Nomination Scheme visa. On 11 June 2014, the applicants sought Ministerial Intervention according to s 351 of the Act. On 7 April 2016, the applicants were advised that the minister had declined to intervene.
On 2 May 2016, the applicants submitted a Protection visa application, which was found to be invalid on 7 July 2016. On 19 July 2016 they lodged a valid application for a Protection visa. This application was refused by the Department on 19 October 2017. The applicants lodged an appeal at the AAT on 10 November 2017.
APPLICANT’S CLAIMS FOR PROTECTION
The applicants provided the following background information in the application for the Protection visa:
Applicant 1 [(the first named applicant)], was born on [date] in Vietnam. His brother, sister and mother continue to reside in Vietnam. His father is deceased.
Applicant 2 [(the second named applicant)], was born on [date] in Vietnam. She has [brothers and sisters]. A total of [number] of her siblings reside in Australia.
Applicant 3 [(the third named applicant)], was born on [date] in Vietnam.
The parties identify as Buddhist.
Summary of claims
The first named applicant claimed that he left his [hometown] in Vietnam for Saigon to live with his aunty. He claimed that this decision was made because the Vietnamese authorities wanted him to join the local police force and army unit. That he did not want to do so, because “most of the local community abhorred the police and army unit.” He claimed that they threatened and bullied people.
He claimed that he has been threatened by the local Vietnamese government since 2005. That they had threatened to arrest him unless he produced a large amount of money.
He claimed that his father-in-law died in February 2011. That he went back to Vietnam for the funeral. That he had to “leave Vietnam in a day” because the communist police sought to arrest him. He claimed that they wanted to do so because his father was in the former government army. He claimed that he was demanded to pay a “great sum of money” for his life.
He claimed that in February 2013, his grandfather was “seriously ill”, so he had to return to Vietnam to see him. That while he was in Vietnam, the local police came to see him again and questioned him about the sum of money. He claimed that they threatened him, so he left Vietnam with the intention to never return.
He claimed that if he were to return to Vietnam he would be arrested by the police.
The second named applicant claimed that her security was compromised due to the threats that her husband received. She claimed that when the Vietnamese authorities failed to locate her husband they threatened her.
At the time of application the third named applicant made no claims of her own.
EVIDENCE SUBMITTED TO THE DEPARTMENT
The applicant submitted the following information to the Department.
a.Six photos of the applicants attending protests in Australia.
b.An invitation dated [in] March 2013, for the first named applicant to attend the [named] Ward Police, at 9am [in] March 2013. The reason listed for the meeting is to discuss the applicant’s registration and management of residence. This letter has been translated into English.
c.A copy of the second named applicant’s Vietnamese passport, issued [in] 2011.
d.A copy of the second named applicant’s Vietnamese passport, issued [in] 2006.
e.A copy of the first named applicants Vietnamese passport, issued [in] 2006. This includes any accompanying children, under which the third named applicant is listed.
f.A copy of the third named applicant’s Vietnamese passport, issued [in] 2015.
g.A copy of the third named applicant’s Vietnamese birth certificate issued [in] 2010, with English translation.
EVIDENCE SUBMITTED TO THE TRIBUNAL
On 20 September 2023 the first named applicant completed and returned a pre-hearing information form in which he states he will be detained, arrested and imprisoned on return to Vietnam for the following reasons:
-    Viet Tan member
-    Online political blogger
-    Involvement in political activities against the Vietnamese Government
-    Associating with individuals who are blacklisted by the Vietnamese Government.
The following evidence was submitted to the Tribunal on 5 and 7 December 2023:
a.Copies of the applicant’s passports
b.Statements by [the first applicant] and [the third applicant]
c.Extensive photo evidence of the applicant’s political activities in Australia
d.Press report on arrests of human rights activists in Vietnam
e.A letter of support from Mr Do Dong Lieu and accompanying evidence related to the Viet Tan group.
f.Extensive evidence of [Social Media 1] activity of the applicants.
In his statement dated 4 December 2023 the first named applicant states the following:
He is an official member of Viet Tan and the Vietnamese government often monitors individuals associated with political parties. Members of Viet Tan are blacklisted by the government.
He is a [Social Media 1] blogger. He publicly posts, likes and shares censored country information and voices his political opinions about the Vietnamese governments corrupt activities, violations of human rights and democracy. He states that many political bloggers have been imprisoned for criticising the government and he will face the same risk.
He has a close relationship with Viet Tan leaders who have arrest warrants in Vietnam due to their political activities. His friendship with these individuals is public and he believes he will be monitored and persecuted for his association with them because they are considered “terrorists”.
His father was a soldier who served in the Vietnam War and died in 1973. The communist authorities in his hometown perceive his family as supporters of the previous South Vietnamese government due to his father’s involvement in the war. He and his mother were often treated unfairly, ignored and didn’t enjoy equal rights compared to other families.
Since his youth he has noticed the lack of equality, freedom and democracy faced by the Vietnamese people. The government monitors and sensors all forms of political speech and any political opinions considered a threat to the government are not tolerated. He was scared and did not participate in any political activities while residing in Vietnam to avoid persecution. He desired to raise his children in a country that values human rights.
He outlines his earlier evidence in respect of his return visits to Vietnam. He states that as a result of the treatment he received he became angrier about the corruption and unjust treatment of citizens by the government. From then on he was motivated to raise his voice about the political situation in Vietnam and actively participate in events to condemn the Vietnamese government. He states he attended the ‘Fall of Saigon’ 30^th April 1975 protest at the Vietnam Embassy in Canberra and there became aware of the Viet Tan in 2013. He found their objectives aligned with his political beliefs and began to support Viet Tan.
He has become actively involved in Viet Tan social and political activities. Viet Tan membership is by invitation only and he was invited to join [in] October 2019 and after a training period he became an official member.
Currently he is [a senior member of Committee 1] in Viet Tan [Chapter 1]. He is responsible for organising and sharing work between members, planning activities and ensuring all work is done smoothly during [events]. He states that the monthly Pho Day is their most important fundraising activity and the main source of income for the party.
He states that in 2016 the Vietnamese Government declared Viet Tan a terrorist organisation and any individuals affiliated with them are considered accomplices to terrorism.
If he returns to Vietnam he will be at serious risk of persecution and imprisonment due to his Viet Tan membership and activities. There is clear evidence of his affiliation with Viet Tan and his activities are shared publicly online. The authorities will consider him a terrorist and his fundraising activities as ‘financing of terrorism’ with the intent to overthrow the government.
Many Viet Tan members from Australia, USA, Europe and Vietnam have been arrested and subjected to long prison sentences for their pro-democracy activities with Viet Tan.
He is often photographed with the yellow Republic of Vietnam flag which is considered anti-government. These photos are shared widely on his [Social Media 1] page and on Viet Tan’s official Facebook page. He believes the Vietnamese authorities know him as a Viet Tan member and anti-government activist.
He is also the administrator of [a social media site] used to publish information about the Vietnamese government’s corrupt activities and unjust treatment of Vietnamese citizens. His photos are continually published on Viet Tan’s Facebook page which has over 1.3 million followers worldwide. The official page is closely monitored by the Vietnamese government.
He has been photographed with Viet Tan representatives who are currently on the wanted list in Vietnam such as Nguyen Do Thanh Phong, Do Dang Lieu, Do Hoang Diem and Ly Thai Hung. He will be considered an accomplice.
He also fears for his family’s safety. He, his wife and his daughter all participate actively in political demonstrations against the Vietnamese government.
Mr Van Kham Chau, a Vietnamese Australian citizen and previous representative of Viet Tan Sydney Chapter was arrested during his fact-finding visit to Vietnam in January 2019. He was unfairly sentenced to 12 years imprisonment on terrorism charges and served four years before being released to Australia.
If he returns to Vietnam as a failed asylum seeker he will be charged as a Vietnamese citizen and will receive no international protection.
Relocation within Vietnam will not protect him and state protection will not be available as it is the authorities who will persecute him.
Similar testimony is provided in respect of his ability to satisfy the Complementary Protection criterion.
The third named applicant made a statement on 4 December 2023 in which she states the following:
She has not previously raised a claim with the Department in her own right and would like the opportunity to do so.
On return to Vietnam she believes she will be detained harassed, imprisoned and tortured in prison for the following reasons:
She is an active member of Viet Tan and an online activist who shares sensitive information and political opinions which are against the Vietnamese government using platforms such as [Social Media 1]. Further she is at risk of persecution due to her close association with prominent Viet Tan leaders who are blacklisted by the Vietnamese government and due to her political protest activities in Australia in support of her political beliefs.
She was born in Vietnam and lived there until she was [age] years old. She has limited recollection of her childhood in Vietnam and was too young to understand the principles of good government and human rights. She migrated to Australia as a dependent of her father and completed her schooling in Australia.
In 2013 she first attended the annual 30^th April event organised in front of the Vietnamese Embassy in Canberra with her father. Since then she has continued to join her father at many political events including Viet Tan events. This motivated her to learn more about the political situation in Vietnam.
Around October 2019 her father was invited to join Viet Tan and she was able to attend more activities and meetings that are only available to Viet Tan members. In early 2023 she voiced her interest in joining Viet Tan herself and was invited to become a member in June 2023. She was granted official membership [in] November 2023.
Since becoming a Viet Tan member she has publicly spoken about her political beliefs. [In] March 2023 she spoke about her thoughts about China’s illegal occupation of Vietnam’s Paracel and Spratly Islands and demanded the Chinese government leave Vietnamese islands and water in front of the Chinese Embassy in Sydney. [In] July 2023 she again spoke out about this issue in [location]. This is a highly sensitive topic due to Vietnam and China’s diplomatic relationship. The Vietnamese communist leaders have not raised their concerns on China’s invasion of Paracel and Spratly islands which has angered Vietnamese citizens.
She has proudly been photographed with the yellow Republic of Vietnam flag which identifies her as a supporter of the ex-government. These photographs have been shared on social media platforms.
Her personal [Social Media 1] account is under her real name and the Vietnamese government is able to trace her identity. She has circulated sensitive information on her [Social Media 1] page and her activities have been posted on the Viet Tan’s official Facebook page.
She has been photographed standing and working with leaders of Viet Tan including the chairman of Viet Tan, Mr Ly Thai Hung, a central representative of Viet Tan, Dr Nguyen Do Thanh Phong, a representative of Viet Tan Australia, Mr Do Dang Lieu and a prominent member of Viet Tan and former prisoner of conscience, Mr Chau Van Kham. All of these people are listed on the wanted terrorist list of the Vietnamese government. Their names and photos are published on the Ministry of Police of Vietnam’s official website.
She repeats the claimed fears of her father in respect of returning to Vietnam and about the possibility of relocation and availability of state protection.
The letter of support from Mr Do Dong Lieu indicates he is the representative of Viet Tan’s Australia Chapter. He writes in support of [the first applicant], his wife and daughter and certifies that they are long term Viet Tan supporters. He states that the first and second named applicants joined in 2019 and are currently very active members and that the third named applicant joined in June 2023. He states that they participate in all Viet Tan activities, meetings, rallies and demonstrations against human rights violations and wrongdoing of the Vietnamese communist regime. He states they have demonstrated their commitment to the aims of the Viet Tan. He opines that their involvement with Viet Tan, and their efforts to help Viet Tan recruit new members, is certainly known by the Vietnamese authorities and for this reason they will be at great risk if returned to Vietnam. He states that the family left Vietnam because they hated the communist dictatorship where they were subjected to hardship.
CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations.
Findings and reasons
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference
The applicants have produced copies of their Vietnamese passports which verify their claimed identities and nationality. On the basis of this evidence the Tribunal accepts the applicants are all nationals of Vietnam and has assessed their claims against Vietnam.
Claims of past harm in Vietnam
The first named applicant claimed to have experienced harm in the past on account of his family’s deemed political profile and for refusing to join the police and/or the army. The second named applicant claimed to have experienced past harm in connection with her husband.
The Tribunal has concerns about the claimed past harm due to the applicants’ willingness to return to Vietnam where it is claimed the harm occurred. However, for the reasons provided below the Tribunal did not deem it necessary to make conclusive findings in respect of the claimed past harm.
Claims in respect of political activity in Australia
Having considered the evidence before it, including the applicants written statements and the extensive documentary evidence they have provided about their political activities in Australia, the Tribunal accepts that the first and second named applicants began associating with Viet Tan around 2013 and formally joined the party in 2019. Based on their written testimony, the documentation of their protest activities and the letter of support from Mr Do Dong Lieu, the representative of Viet Tan’s Australia chapter, the Tribunal accepts they continue to be committed members of Viet Tan. The Tribunal accepts they have participated in numerous protests and have publicly voiced their criticisms of the Vietnamese government on a number of issues. The Tribunal also accepts that they have expressed their views through [posts] on both their personal [Social Media 1] pages and on the Facebook page of Viet Tan and that their presence alongside prominent Viet Tan members has been photographed and publicly shared online. The Tribunal also accepts that the third named applicant also joined Viet Tan in June 2023 and has been actively voicing her opposition to the Vietnamese government and its policies at public demonstrations and on [Social Media 1].
Independent country information sources indicate that opposition pro-democracy groups and those with overseas links such as Viet Tan have been proscribed as terrorist organisations as is claimed by the applicants. As political opposition parties are illegal in Vietnam, opposition parties are typically based overseas to avoid harassment, arrest and detention.[1] According to DFAT, Viet Tan is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[2] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism as is claimed by the applicants.[3] Other opposition groups, who are reported to have links to Viet Tan have been accused of activities aimed at overthrowing the government.[4]
[1] ‘Report of a Home Office fact-finding mission to Vietnam – conducted between 23 February and 1 March 2019’, UK Home Office, 9 September 2019; DFAT Country Information Report Vietnam, 13 December 2019.
[2] DFAT ibid
[3] ‘Vietnam declares San Jose-based Viet Tan a terrorist group’, Associated Press (AP), 7 October 2016
[4] DFAT n1 above
There are reports of numerous arrests of alleged Viet Tan members in recent years, including of Australian citizens.[5] There is also information available which indicates that more generally, human rights activists seeking to exercise their freedom of expression or association may experience harassment, surveillance, restrictions on their movement, short-term detention and imprisonment.[6] It is also reported that there is government repression of online activism, ranging from electronic harassment, fines and in some instances arrest and imprisonment.[7] A new cyber security law, which came into force in January 2019, gives the government greater surveillance and censorship powers, requiring service providers to take down offending content within 24 hours, and internet companies to disclose user data to authorities. The law prohibits people from ‘distorting history, denying revolutionary achievements, destroying the national solidarity block’ and ‘providing false information, causing confusion amongst the Citizens … and causing harm to socioeconomic activities.[8] The sources suggest that there is limited government tolerance of direct political opposition and advocacy of a multi-party, political system. Topics specifically referred to include criticism of individual government leaders or the party, promotion of political pluralism or multi-party democracy and questioning policies on sensitive matters, such has human rights, religious freedom or sovereignty disputes with the People’s Republic of China.[9]
[5] DFAT ibid, ‘Vietnam Human Rights Report January-June 2019: Crackdown on Facebook Users, Civil Society Groups, and Public Protesters Continues’, The 88 Project, 31 July 2019, ‘2019 Report on Political Prisoners and Activists at Risk in Vietnam’, The 88 Project, 22 June 2020
[6] ‘World Report 2020. Events of 2019’, Human Rights Watch (HRW), 14 January 2020
[7] ‘Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam’, The 88 Project an the Global Human Rights Clinic of the University of Chicago Law Schook, 1 November 2021; ‘Freedom on the Net 2022 – Vietnam’, Freedom House, 18 October 2022
[8] ‘Submission to the Universal Periodic Review of Vietnam’, Human Rifhts Watch, 13 July 2018; ‘Vietnams New Cyber Law Could Hobble Foreign Investors and Limit Basic Freedoms’, Centre for Strategic and International Studies (CSIS) 2 July 2018; ‘Human Rights in Asia-Pacific: Review of 2019’, Amnesty International, 29 January 2020
[9] ‘Domestic and Foreign Policy in Vietnam: The Future of Vietnamese Civil Society’, Carl Thayer, Georgetown Journal of Asian Affairs, 2019, ‘The State in a Capitalist Society: Protests and State Reactions in Vietnam and Indonesia’, Wischermann, Jorg, Phuong Dang, Thi Viet and Sirai, George Martin, Journal of Contemporary Asia 6 April 2022; ‘Country Reports on Human Rights Practices for 2022- Vietnam’, US Department of State, 20 March 2023
According to DFAT’s most recent report whilst topics that are deemed to be sensitive can change or depend on local government priorities at the time, some sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day’.[10] DFAT assesses that “Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted…. It is difficult to give an overall assessment of the risk of online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination”. It is further noted that it is likely a repeated pattern of online activity would attract authorities’ attention.[11]
[10] DFAT Country Information Report Vietnam, January 2022
[11] ibid
Based on the above reporting, the Tribunal finds that the applicants’ political activities, including their membership of Viet Tan and their close association with prominent Viet Tan figures, will be known to the Vietnamese authorities. Further, the Tribunal accepts the applicants are committed to their political opinions and will seek to continue to express views which are likely to attract negative government attention if they were to return to Vietnam.
In light of the country information outlined above, the Tribunal is satisfied that if the applicants are required to return to Vietnam there is a real chance that they would suffer serious harm including being harassed, monitored, subjected to physical harassment and even arrest at the hands of the Vietnamese authorities for reason of their political opinions.
The Tribunal is satisfied that the harm they would face relates to all areas of Vietnam. Because the harm they would face is from the Vietnamese authorities, the Tribunal is satisfied that effective state protection against the harm they fear would not be available to them.
For all the above reasons the Tribunal finds that the applicants have a well-founded fear of persecution in Vietnam. There is no evidence before the Tribunal that they have an existing right to enter and reside in any other country and s 36(3) therefore does not apply.
The Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4835

12 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction