1730422 (Refugee)

1730422 (Refugee) [2024] AATA 3002 (30 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1730422; 2017579; 2204832
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Damian Creedon
DATE:30 April 2024
PLACE OF DECISION:  Perth

DECISION: CASE NUMBERS 1730422 and 2017579
The Tribunal affirms the decision not to
grant the applicants protection visas.

DECISION: CASE NUMBER 2204832
The Tribunal affirms the decision not to
grant the applicant a protection visa.

Statement made on 30 April 2024 at 10:27am
CATCHWORDS
REFUGEE – protection visa – Vietnam – economic hardship – employment opportunities – preference for western liberal values – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 2.08; Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 24 November 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background and Claims for Protection:
The applicants are citizens of Vietnam.[1]
[1] Each of the applicants has provided a passport issued by the Socialist Republic of Vietnam.
The first-named applicant and the second-named applicant are, respectively, [age] years of age, and [age] years of age; they are in a long-term de facto relationship and are the parents of the third-named applicant and the fourth-named applicant.
Owing to the timing of the births of the third-named applicant and the fourth-named applicant relative to the stages of their parents’ protection visa application it is necessary to set out the background to the respective applications in brief detail.
The first-named applicant and the second-named applicant
The first-named applicant’s and the second-named applicant’s application for protection was made on 6 December 2016. Their written claims for protection may be summarised as follows:
·The first-named applicant has been beaten and threatened by gangsters to whom he refused to pay protection money which he could not afford as he was unemployed.
·The matter was reported to the police.
·The police could not assist because the first-named applicant was unable to nominate the gangsters by name.
·The gangsters are further disturbed that they were reported to the police.
·All gangs are connected throughout Vietnam which makes all of the country unsafe for the first-named applicant.
The delegate refused to grant the visas on the basis that the applicants are not refugees as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm. The delegate made their decision on 24 November 2017.
The first-named applicant and the second-named applicant applied to the Tribunal for a review of the delegate’s decision on 4 December 2017. Their application for review is AAT Case Number 1730422.
The third-named applicant
The third-named applicant was born in Australia on [date], and she is currently [age] years of age.
Regulation 2.08 of the Migration Regulations 1994 (Cth) (the Regulations) provides that if:
(a) a non-citizen applies for a visa; and
(b) after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen;
then:
(c) the child is taken to have applied for a visa of the same class at the time he or she was born; and
(d) the child's application is taken to be combined with the non-citizen's application.
The third-named applicant’s birth was therefore after her parents’ protection visa application was made, but before it was decided. By operation of reg 2.08 of the Regulations the third-named applicant is taken to have applied for a visa of the same class as her parents at the time she was born, that is [date], and her application is taken to be combined with that or her parents.
A delegate of the minister made a decision in respect of the third-named applicant’s deemed application on 13 November 2020. The date of the decision is explained in the delegate’s decision record which notes that:
…the Department was only notified of the applicant’s birth after a primary decision was made on her father’s application for a Class XA - Protection visa (subclass 866) application. An individual application was created and validated in relation to her father’s application, pursuant to regulation 2.08.
As with her parents’ application, the delegate refused to grant the visa on the basis that the third-named applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the third-named applicant being removed to her receiving country, there was a real risk she would suffer significant harm.
An application for review of the delegate’s decision in respect of third-named applicant’s deemed application was made on 7 December 2020. The third-named applicant’s application for review is AAT Case Number 2017579.
The Tribunal finds that a reviewable decision has been made in respect of the third-named applicant, and that it has jurisdiction to hear and decide the third-named applicant’s application for review.
The fourth-named applicant
The fourth-named applicant was born in Australia on [date], and he is currently [age] years of age.
The fourth-named applicant was born both after his parents’ application was made and after it was decided. Children who are born after the primary decision is made, including those born during the course of a review by the Tribunal, are not taken to be included in their parents’ visa application. This is because reg 2.08(1)(b) of the Regulations, as set out above, is not satisfied.
Accordingly, on 20 September 2021 the fourth-named applicant made a separate application for a protection visa, adopting in substance the claims of his parents and sister; his written claims for protection may be summarised as follows:
·When the fourth-named applicant’s parents return to Vietnam they will be killed or seriously injured by gangsters.
·The fourth-named applicant will be sent to an orphanage.
The delegate refused to grant the visas on the basis that the fourth-named applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the fourth-named applicant being removed to his receiving country, there was a real risk he would suffer significant harm. The delegate made their decision on 18 March 2022.
An application for review of the delegate’s decision in respect of third-named applicant’s application was made on 1 April 2022. The fourth-named applicant’s application for review is AAT Case Number 2204832.
The Tribunal finds that a reviewable decision has been made in respect of the fourth-named applicant and that it has jurisdiction to hear and decide the fourth-named applicant’s application for review.
Application for review:
The claims for protection for each of the applicants are substantively identical, save for some supplementary additional claims in respect of the third and fourth-named applicants which will be dealt with separately below.
The first-named applicant and the second-named applicant consented for the review of the third-named applicant’s and the fourth-named applicant’s claims to be combined with their application for review, and for all matters to be heard and decided together.
The first-named applicant is the primary applicant in AAT Case Number 1730422 and by extension his claims are the primary written claims for the second, third and fourth-named applicants. For the sake of convenience, and unless the context otherwise requires, for the balance of this decision the Tribunal will refer to:
a.the first-named applicant as the ‘applicant’; and
b.the first, second, third and fourth-named applicants collectively as the ‘applicants’.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.Copies of the applicants’ passports issued by the Socialist Republic of Vietnam;
b.The applicants’ protection visa application forms;
c.The delegate’s protection visa decision records for each of the applicants, copies of which were provided to the Tribunal by the applicants or on their behalf; and
d.The review application forms lodged by the applicants with the Tribunal.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Vietnam, 11 January 2022 (DFAT Report).
Hearing
The applicants appeared before the Tribunal on 23 April 2024. The first and second-named applicants gave evidence and presented arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Applicant’s oral evidence
The following is a summary of the applicant’s oral evidence to the Tribunal:
a.The applicant stated that his home city is Ha Tinh, Vietnam. His parents are resident in Vietnam. He is the youngest of [number] siblings, having [number] brothers and [number] sisters. [Number] of his siblings are resident in Vietnam, and one is resident in [Country 1]. He has no extended family in Australia.
b.The applicant completed his primary and secondary education in Vietnam and undertook further studies there with the aim of becoming an [Occupation 1].
c.The applicant stated that he first came onshore [in] September 2013 at age [age], and that he did so on a Student visa with a view to studying English and to continuing his studies towards becoming an [Occupation 1]. When pressed, he stated that his career plan was to return to Vietnam to work there.
d.Since arriving onshore, the applicant has been resident in Perth. He is in a de facto relationship with the second-named applicant and the couple have three children, the third and fourth named applicants, and a youngest son “[named]”, who is not party to the application. He is currently working as a “[Occupation 2]”.
e.The applicant confirmed that his Student visa was cancelled in February 2016. It was cancelled, he stated, because he did not have enough money to maintain his studies. He stated that “someone” introduced him to “this visa” and that he applied for it to earn enough money to resume his studies. He stated that he was advised by a “lawyer” that it would then be “easier” to apply for a Student.
f.When asked what he was seeking to achieve in applying for a Protection visa, the applicant stated:
I really wanted to get some money and then back to Student visa.
g.When asked what he feared about returning to Vietnam, the applicant stated:
I wouldn’t find any job or work in Vietnam.
h.When pressed, he stated that it is “quite hard” to find a job in his hometown. When further pressed as to whether there are other parts of Vietnam where he could find work, the applicant stated to the effect that there were, but that it is “still hard” without “qualifications, or a certificate, or something”.
i.When asked whether, if he returned to Vietnam, he would have support from his family there, the applicant stated:
Yes, I would have support but not much I believe.
j.When asked whether he had any other reason to fear returning to Vietnam such as debts, or violence, the applicant stated that he had no such fears, but that it would be “hard” to find a job in his hometown.
k.When asked whether he could freely move to “big cities” in Vietnam to find work, the applicant stated he had no connections in such places and that finding work would be hard.
Second-named applicant’s oral evidence
The following is a summary of the second-named applicant’s oral evidence to the Tribunal:
a.The second-named applicant stated that her home city is Ha Tinh, Vietnam. Her parents are resident in Vietnam, as are her [number] siblings.
b.The second-named applicant completed her primary and secondary education in Vietnam and came to Australia to study [Subject 1]. To fund her studies, she and her parents borrowed “AUD$30,000 – AUD$40,000”. This money was repaid “a few years ago” and she has no debts in Vietnam today.
c.The second-named applicant and the applicant knew each other prior to establishing their intimate relationship in Australia.
d.The second-named applicant stated that the main reason she does not want to return to Vietnam is that she has “different political opinions”. When pressed as to what opinions she holds, the applicant stated:
We don’t have freedom to speak in Vietnam.
e.When further pressed, the second-named applicant agreed that she preferred “western freedoms” to the communist government of Vietnam.
f.When asked whether there was any reason the Vietnamese government would target her in Vietnam, the applicant stated that she did not know.
g.When pressed, the applicant stated that she had not been politically active in Australia and had not undertaking any action opposing the government in Vietnam. She stated that she and the applicant are not members of any community groups here, although they attend cultural events.
h.When asked whether she had made any social media or Facebook posts opposing the government in Vietnam that applicant stated that she had not, although she had “look” at such posts, but not shared them.
i.The second-named applicant agreed that she was concerned about finding work in Vietnam.
Country of reference:
The applicants claim to be citizens of Vietnam. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
Assessment of evidence:
The mere fact that a person claims fear of persecution for a particular 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
Analysis:
The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[2]
[2] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[3]
Written claims for protection
[3] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The applicant offered no evidence in support of his written claims for protection; when asked directly at the hearing whether he held fears about returning to Vietnam for reasons of debt, or whether he feared violence there at the hands of gangsters or of anyone else, the applicant stated expressly that he had no such fears.
The Tribunal finds that there is no substance to the applicant’s written claims for protection and it rejects them in their entirety. As these claims form the essence of the other applicants’ written claims for protection, it follows that those claims are also rejected for each of the applicants.
Economic hardship
The core of both the first and second-named applicant’s oral evidence was their fear that they would be unable to find employment in Vietnam, and thus be subjected to economic hardship there.
The Tribunal accepts that the first and second-named applicants do not wish to return to Vietnam as they have better employment opportunities in Australia. However, the applicants made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.
Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim. Even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[4] The applicants made no claim to particular vulnerability.
[4]MIMIA v VFAY [2003] FCAFC 191 at [60].

In its most recent overview of Vietnam’s economy,[5] the World Bank reports that:
[5] See: < >
Vietnam has been a development success story. Economic reforms since the launch of Đổi Mới in 1986, coupled with beneficial global trends, have helped propel Vietnam from being one of the world’s poorest nations to a middle-income economy in one generation. GDP per capita increased 6-fold in less than 40 years, from less than $600 per person in 1986 to almost US$3,700 (constant 2015 US$). Poverty rates (US$3.65/day, 2017 PPP) declined from 14 in 2010 to 4.2 percent in 2022.
Thanks to its solid foundations, the economy has proven resilient through different crises. Economic growth is projected to reach 5.5 per cent in 2024, up from five percent in 2023, driven by increasing global demand and restored domestic consumer confidence. Real GDP growth is expected to strengthen in the next three years, reaching the pre-pandemic average by 2026.
Growing at 2.5 to 3.5 percent per year over the past three decades, the agriculture sector has supported economic growth and ensured food security. It contributed 13 percent of GDP and 29 percent of employment in 2021.
Health outcomes have improved along with rising living standards. Infant mortality rates fell from 32.6 per 1,000 live births in 1993 to 16.7 in 2020. Life expectancy rose from 70.5 to 75.5 years between 1990 and 2020. Vietnam’s universal health coverage index is at 73—higher than regional and global averages—with 87 percent of the population covered by the national health insurance scheme.
Vietnam’s average duration of (learning-adjusted) schooling is 10.2 years, second only to Singapore among the Association of Southeast Asian Nations (ASEAN) countries. Its human capital index is 0.69 out of a maximum of one, the highest among lower middle-income economies.
Access to infrastructure services has increased dramatically. As of 2019, 99.4 percent of the population used electricity as their main source of lighting, up from just 14 percent in 1993. Access to clean water in rural areas has also improved—up from 17 percent in 1993 to 51 percent in 2020.
Vietnam has grown bolder in its development aspirations, aiming to become a high-income country by 2045. To achieve this goal, the economy would have to grow at an annual average rate of about six percent per capita for the next 25 years. Viet Nam also aims to grow in a greener, more inclusive way. At COP27, it pledged to reduce methane emissions by 30 percent and halting deforestation by 2030 while achieving net zero carbon emissions by 2050. To achieve these targets, Viet Nam unveiled the "One Million Hectares of High-Quality Low-Emission Rice" Program at COP28. The World Bank is actively collaborating with Viet Nam on this program's design and implementation.
A few megatrends are shaping the future of Vietnam. The country’s population is rapidly aging and global trade is declining. Environmental degradation, climate change, and the rise of automation are growing. The impacts of the COVID-19 crisis presented unprecedented challenges that might undermine progress towards development goals.
To rise to these challenges, Vietnam needs to dramatically improve its performance to implement policies particularly in finance, environment, digital transformation, poverty/social protection, and low-carbon infrastructure. Adapting to climate impacts and pursuing a growth strategy that steers the economy away from carbon-intensive production will help the country achieve its climate objectives while expanding its GDP per capita by around six percent a year – the average rate needed to become a high-income country by 2045.
Last Updated: Apr 19, 2024
[Tribunal’s emphasis.]
The Tribunal notes that the World Bank projects economic growth in Vietnam to reach 5.5% in 2024, with the International Monetary Fund (IMF) projecting Gross Domestic Product to increase by 5.8%.[6] According to the IMF the current unemployment rate in Vietnam is 2.1%.[7] By comparison, the IMF projects economic growth in Australia in 2024 to be 1.5%, and records the current unemployment rate as 4.2%.[8]
[6] See: < Ibid.
[8] See: <>
In view of this country information the Tribunal is not persuaded that first and second-named applicants would be subjected to significant economic hardship in Vietnam that threatens their capacity to subsist there. By extension, this finding extends to the second and third-named applicants as dependants of their parents.
The Tribunal finds, therefore, that the applicants do not have a well-founded fear of persecution in Vietnam based upon a claim of economic hardship.
Complementary protection
The Tribunal accepts the first and second-named applicants have concerns about being able to find work if they return to Vietnam. The Tribunal also accepts that they may face some difficulty in doing so at least initially, although the applicant stated that he would be able to rely upon some assistance from his family there. However, the first and second-named applicants did not suggest that any person or group will seek to harm them for any reason relating to their economic situation. There is no evidence before the Tribunal that they have ever been discriminated against or otherwise prevented from obtaining work in Vietnam. By extension, this finding extends to the second and third-named applicants as dependants of their parents.
Accordingly, the Tribunal finds that any economic hardship the applicants might experience, if removed to Vietnam, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.
Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk they will suffer significant harm.
Other claims
In her oral evidence the second-named applicant raised generalised claims relating to her attitudes to the Vietnamese government. When pressed, the applicant confirmed she preferred western liberal values to the communist regime there. She stated, however, that she was not aware of any reason the government would target her in Vietnam. She stated in evidence was that, although she had “looked” at social media posts opposing the Vietnamese government, she had not authored any such posts, nor had she liked for forwarded them.
Based upon her evidence, the Tribunal finds that neither she nor the other applicants would have any adverse profile in Vietnam, and it finds that they would not be perceived as being ‘anti-government’ upon return there.
DFAT assesses that the Vietnamese 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 states that is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[9]
[9] DFAT Report para [5.31].
DFAT further assesses that:
Being 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.[10]
[10] DFAT Report para [5.34].
The Tribunal notes that the applicants may experience challenges accessing social services initially, particularly in cases where household registration has ceased.[11]
[11] DFAT Report para [5.32].
The Tribunal has found no evidence or country information to suggest that the fourth-named applicant would be “sent to an orphanage” for any reason upon his return to Vietnam and it rejects this claim.
While the Tribunal appreciates the applicants’ situation and acknowledges their preference to remain in Australia, it is not satisfied that any challenges they may face in Vietnam amount to serious harm for the reasons of their race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that there is a real chance that the applicants will face serious harm, including significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist, for one or more of the reasons mentioned. Nor is the Tribunal satisfied that the challenges the applicants may face in Vietnam constitute ‘significant harm’. The applicants’ claims do not demonstrate an actual subjective intention to cause them severe pain or suffering (either physical or mental) or pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or extreme humiliation that is unreasonable.
Conclusions:
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicants as contained in their applications and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicants will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if they return to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if they return to Vietnam. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicants’ claims under complementary protection.
The Tribunal is satisfied there is no real risk that the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicants, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk they will suffer arbitrary deprivation of their life or the death penalty. The Tribunal finds no grounds that suggest the applicants will be subject to significant harm for any reason if they return to Vietnam. Therefore, the Tribunal finds that the applicants do not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam that there is a real risk that they will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants, or any of them, satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION: CASE NUMBERS 1730422 and 2017579
The Tribunal affirms the decision not to grant the applicants protection visas.
DECISION: CASE NUMBER 2204832
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damian Creedon
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.
…

[2024] AATA 3002

30 April 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction