1801814 (Refugee)

1801814 (Refugee) [2023] AATA 1146 (10 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1801814

COUNTRY OF REFERENCE: Vietnam
MEMBER:Andrew McLean Williams
DATE:10 February 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 10 February 2023 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – Catholic Youth Group member – political opinion – illegal departure – employment – protests in Australia – fear of arrest – physical assault – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Saliba v MIMA ((1998) 89 FCR 38
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 dependants.
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 Home Affairs on 8 January 2018 thereby refusing to grant the Applicant a protection visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant who is a citizen of Vietnam, applied for the visa on 29 November 2016. The Delegate refused to grant the visa on the basis of his determining that the Applicant was not a person to whom Australia owed any protection obligations under the Act.
The Applicant appeared before the Tribunal on 19 September 2022 to give evidence. The Tribunal also received oral evidence from [name], who is the applicant's Husband, and who already holds a Temporary Protection (Subclass 785) visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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 ‘complementary protection’ grounds; or is a member of the same family unit as such a person, and that other 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 will qualify as 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 in 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 s.36(2A), and s.36(2B), which are also 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.
CONSIDERATION OF Claims and evidence
At the outset the Tribunal records that it is satisfied regarding the identity and nationality of the Applicant as a female citizen of Vietnam. The Tribunal is satisfied that Vietnam is the receiving country for purposes of the Migration Act, and that the Applicant does not have any right to reside in any third country, being a country other than either Australia, or Vietnam.
The issue in this case is whether the Applicant is owed protection obligations by Australia under the Migration Act.
For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
In her original protection visa application, and subsequently during her protection visa interview, the Applicant claimed protection in Australia under the provisions of the Migration Act on the following stated grounds:
·The Applicant was born in Quang Binh Province, Vietnam;
·The Applicant is a practising Catholic, and was born into a Catholic Family in Vietnam;
·As a Catholic, the Applicant claims that she has been both ignored, and watched, by local authorities in Vietnam;
·The Applicant fears that she will be unable to obtain a job or have a decent life in Vietnam, owing to her Catholicism and the restrictions imposed on Catholics by the communist-run government of Vietnam;
·The Applicant raises concerns and fears about the nature of the Vietnamese political system in general, and about environmental degradation in Vietnam, in particular. The Applicant cited environmental damage caused by chemical spills by the Formosa Ha Tinh Steel Company in the South China Sea in April 2016 as an example of her concerns.
·The Applicant claims to have no financial support and fears that she will be unable to live in Vietnam, and claims that she is unable to relocate to another part of Vietnam in order to avoid those things that give rise to her fears.
On 8 January 201,8 the Delegate determined that, although there were some restrictions on the practice of the Catholic faith in Vietnam, there was no available information to suggest that Catholics were systematically targeted in Vietnam. The Delegate also found - on the basis of DFAT country information assessments - that Vietnam has undergone an economic transformation and that rates of employment are now very high and rates of poverty have consequentially fallen very significantly; such that even unskilled persons from rural backgrounds have good prospects for securing factory work in urban areas in Vietnam. Although the Formosa Ha Tinh Steel Corporation chemical spill in the South China Sea in April 2016 was a well-documented and significant environmental disaster, the Delegate determined that there was no evidence before him that this event would now prevent the Applicant from obtaining employment or housing in Vietnam.
Overall, the Delegate found that there was no evidential basis for concluding that the Applicant would face a well-founded fear of persecution for one of the reasons identified in s.5J(1)(a) of the Act; or that there was a real chance that the Applicant would suffer significant harm as defined in s.36(2A) as a foreseeable consequence of her being returned to Vietnam.
This Application for Review was commenced before the Tribunal on 24 January 2018.
A hearing in this matter was scheduled for 19 September 2022.
On 13 September 2022, the Applicant contacted the Tribunal advising the fact of her marriage in Australia to her now Husband, [named], [in] June 2020. Also on that date and under cover of a separate e-mail, the Applicant advised the Tribunal of the fact of her having attended anti-Vietnamese government protests in Canberra in company with her husband [in] December 2019, providing attached photographs of this event. A further e-mail sent on that date enclosed a copy of the Subclass 785 (Temporary Protection) Visa already granted to her husband on 24 August 2020, together with a request that the Applicant would like to ‘add my husband visa’.
At the hearing, the Tribunal requested clarification from the Applicant regarding the basis of her claims for protection. The Applicant advised that, although all of the grounds previously raised by her in her protection visa application were true grounds and beleifs honestly held by her, she did not now rely on them and instead seeks protection on the specific basis of her relationship with her husband. The Applicant informed that the new ground for claiming protection was not raised by her previously because the Applicant was not married at the time of commencing her Application for protection. Now, the Applicant and her husband are married, and have had [children] together, and the fact of their union has changed her circumstances in the event that the Applicant were to be required to return to Vietnam.
The Applicant’s husband, [named] was questioned by the Tribunal and a copy of the Department of Home Affairs file referable to his conferral with a Subclass 785 (Temporary Protection) Visa was also obtained, and considered by the Tribunal.
[The applicant’s husband] explained that he has been in Australia since 2013, after having originally escaped Vietnam overland via [named country] in 2012 in order to escape religious oppression in Vietnam.
[The applicant’s husband] informed the Tribunal that he had been a member of a Catholic Youth Group in the City of [City 1] in the Can Loc District, and had participated in a candlelight protest vigil in 2012, protesting against police targeting of Catholics in Vietnam.
On [a day in] July 2012 [the applicant’s husband] says that police o0fficers arrived at the candlelight vigil intent to break it up and he was beaten around the head by police officers armed with batons, resulting in his head becoming badly cut, and requiring stitches. Two days later [the applicant’s husband] says that he received an official letter requiring that he report to the local police station for further questioning. Rather than doing that he instead fled to Saigon, where he remained until April 2013 when he left for his onward journey towards Australia. [The applicant’s husband] claims to have fled Vietnam because the secret police continued to come to his parents home in [City 1] looking for him, and were continually enquiring about his whereabouts.
Since arrival in Australia, [the applicant’s husband] has become an active member of the Vietnamese community in [Australian city], and in particular has become a politically active member of the Viet Tan (Vietnam Reform Party), engaged in anti-communist activities and campaigning in Australia. [The applicant’s husband] had not known the Applicant in Vietnam, yet met her in [this city] via the Vietnamese Catholic community.
There is evidence on the Department of Home Affairs file culminating in the conferral of a Subclass 785 visa upon [the applicant’s husband] that attests to the extent of his involvement in the Viet Tan organisation in Australia.
When before the Tribunal on 19 September 2022 [the applicant’s husband] expressed the fear that he cannot personally return to Vietnam, because of the specific circumstances of his having originally fled Vietnam to avoid police persecution, and because he is now almost certainly known to the Vietnamese authorities as a person who is active in promoting anti-Vietnamese Communist Party events in Australia.
In circumstances in which [the applicant’s husband] is now married to the Applicant, and the Applicant is financially dependent on him, and they now have [number] children, [the applicant’s husband] submits that the Applicant has become a person who also cannot return to Vietnam, because she will be imputed as having the same political opinions as he does, by the Vietnamese Authorities. Similarly, the Applicant now submits that she will be imputed to have anti-communist political opinions in consequence of her marriage to her husband, and because of her presence at various rallies and anti-communist protests in Australia in company with her husband. The inference is that these Vietnamese diaspora events in Australia are subject to surveillance by the Communist Government of Vietnam.
The Tribunal accepts that [the applicant] is married to [her husband], and that each of them are practising Catholics, who now have [number] children.
The Tribunal further accepts that [the applicant’s husband] is active within the Viet Tan organisation in Australia. The Tribunal also accepts that the Applicant has accompanied her husband during rallies, protests, and to other public events conducted by the Vietnamese Community in Australia that have been at least impliedly critical of the Communist Regime, in Vietnam.
The Tribunal concludes that it is reasonable to assume that these events in Australia organised by members of the Vietnamese diaspora in Australia that are critical of the Communist Party of Vietnam may be monitored by the Vietnamese authorities and may afford a basis for returnees to Vietnam being detained for questioning upon their arrival in Vietnam.
The relevant DFAT Country Information Report for Vietnam (11 January 2022) includes the following passages:
3.19      There are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. Such cases are fewer in recent years but those who have been arrested and imprisoned in the past might still be under surveillance by authorities or summoned for regular interrogation. DFAT understands this is generally limited to questioning and surveillance and not violence.
…/
3.26      There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.
3.27      The ‘Red Flag Association’, a militant pro-Government movement allegedly under the direction of local governments, was reported to have disbanded in 2018. Red Flag Association activity included protests outside Catholic churches. In-country sources told DFAT that these protests have not occurred in the last two years and that such activity is now more likely to be online.
…/
3.31      DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.
…/
3.49      Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV (Communist Party in Vietnam) legitimacy are seen as threats to the state and are not tolerated.
…/
3.53      Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54      Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55      Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56      Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57      It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. 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.
In Saliba v MIMA ((1998) 89 FCR 38 at [49]) the Court observed that:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.
In light of the country information, the Tribunal accepts that the Applicant has sufficient basis to now hold a well-founded fear of persecution on grounds of a political opinion that may be imputed to her by reason of the combination of her Catholic faith and her association - by marriage - to her husband, who initially fled Vietnam after attracting adverse police attention for his having engaged in a candlelight protest vigil as part of a Catholic Youth Group, and which has since transmogrified to his becoming active in more broadly-based anti-Vietnamese Communist Party protests among the Vietnamese Community in Australia. The Tribunal accepts that fear that her husband’s political opinions will be imputed to her are now the essential and significant reason for the Applicant fearing persecution in the event that she is returned to Vietnam.

The Tribunal has considered the effect of s.5J(6) of the Act: from the perspective of considering whether the Applicant’s ‘conduct in Australia’ – in the form of her marrying [her husband] and her accompanying her husband to events and rallies organised by the Viet Tan organisation that are overtly (or at least impliedly) critical of the Vietnamese Communist Party – ought now be considered as conduct that is to be disregarded for purposes of determining whether the Applicant has a well-founded fear of persecution, on the basis of it being assessed as conduct solely for purposes of strengthening the Applicant’s claims to refugee status. Upon consideration, the Tribunal considers that it is improbable that the Applicant would go to the lengths of marriage - and her having also now conceived [number] children - for the purposes of improving her prospects of obtaining refugee status. Rather, the Tribunal is satisfied that the Applicant married her husband for genuine reasons, and her having accompanying [him] to protest rallies - and other similar events - is a natural consequence of that marital union; such that s5J(6) of the Act is not engaged, in this instance.
For the reasons as given above, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Andrew McLean Williams
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 1146

10 February 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies