1802872 (Refugee)

1802872 (Refugee) [2023] AATA 1705 (30 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tony Tran
CASE NUMBER:  1802872
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mark Bishop
DATE:30 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 30 January 2023 at 11:40am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Christian – imputed political opinion – anti-government activities – particular social group – Christians accused of resisting government instructions – failed asylum seeker – mother held senior role in church – detained, harassed and beaten by police – denied access to employment and educational opportunities – delay in applying for protection – 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 Home Affairs on 1 February 2018 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 11 November 2016. The delegate refused to grant the visa because the applicant failed to satisfy the criteria set out in the relevant Migration Regulations. The applicant provided a copy of the decision record to the Tribunal.
The applicant appeared before the Tribunal on 27 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review. At the beginning of the hearing the applicant advised the Tribunal that the second applicant claims were based solely on being a member of the family unit of the applicant and as such the second applicant would not give evidence. At the conclusion of the hearing the applicant confirmed this advice.
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.
CONSIDERATION OF Claims and evidence
The applicant is a Vietnamese national born on [date]. At time of decision he is [age] years of age. He arrived in Australia [in] April 2015 as the holder of a TU-580P540 visa that ceased on 15 March 2017.This visa is a guardian visa. He lodged an Application for a Protection Visa on 11 November 2016 some 11 months after his arrival in this country. He is the father of applicant 2.
Applicant 2 is a Vietnamese national born on [date]. At time of decision he is (almost) [age] years of age. He arrived in Australia [in] April 2015 as the holder of a TU-571P542 visa that ceased on 15 March 2017. This visa is a student visa. As set out by the delegate applicant 2 claims to be a member of the same family unit as the applicant but does not make specific claims.[1] The applicant gave evidence applicant 2 is currently the holder of a Bridging Visa.
[1] Decision record page 1
The Tribunal notes the relationship between the applicant and applicant 2 was verified at post by provision of relevant documents in order for the Guardian and Student visas to be granted.[2]
[2] Decision record page 1
The applicant provided a written statement and supporting evidence to the Department.[3] On 15 December 2017 the applicant was interviewed and he provided additional written claims on 19 January 2018. In his second set of written claims and at interview the applicant made claims and provided further information on several issues[4] inclusive of a statutory declaration and legal submissions dated 19 January 2018[5]
[3] See [file number] and as summarised by the delegate at pages 3 and 4 of the decision record.
[4] See decision record at page 4
[5] See [file number] at pages 151 (legal submissions) to 161 (statutory declaration).
The applicant’s claims for protection (as summarised by the delegate[6]) are set out below:
[6] Decision record pages 3 and 4
·Around 2000 his mother joined the Mennonite church and the applicant started to attend some events at the end of 2000.
·In August 2001 they stopped going to the church run by Pastor [A] and started attending church at Pastor [B’s] house and other pastor’s houses.
·From 2001 to 2002 he experienced many issues between the local police and “community monitors” and the Mennonite church. They were often stopped from worshipping, attending the pastor’s house and he and his family were given verbal warnings from the police and summoned to the police station to answer questions about their religion.
·Around 2002 his mother took on a more senior role within the church and started to help the pastor to preach. The applicant was baptised by Pastor [B] in the middle of 2002.
·The applicant was summoned to the police station continuously and it started to escalate after he was baptised and he would be “slapped and hurt”. He was told by a neighbourhood head that the applicant and his mother were known as “politically active” and the church shielded their true purpose of meetings to take action against the government.
·From May 2002 he had to regularly change his jobs because authorities would approach his employer and he would lose his job.
·The applicant continued attending church when he could until September 2005.
·In July 2005 his mother went to Vietnam because of the issues she was facing and things worsened for the applicant. He was regularly questioned about his mother’s whereabouts and was subjected to “more intense surveillance”. The applicant had to report his weekly activities to the police and attend local penalty education sessions.
·When he relocated outside of his area for work the police would interrogate and physically assault him. He was warned not to “disappear from this residence anymore”.
·In mid-August 2006 he was physically assaulted and beaten by police in relation to a land complaint he had made (someone building on this mother’s land) and for leaving his residence to work on a farm. They also handcuffed one of his hands to the grill of the window at the police station while they interrogated and beat him. After this he spent around one week in hospital before being released.
·His mother returned to Vietnam in 2007 and they tried to appeal and to complain about the land that had been taken from his mother’s property.
·Due to issues with the authorities the applicant was not accepted into [Employer 1] and the [Field 1] association despite graduating in [Field 1].
·The applicant sold his father’s property to assist with obtaining his Guardian visa. His uncle assisted with the sale by asking a high ranking police officer who handled the sale of the property, his visa and passport. The applicant “had no idea about the Australian side of things”. Whatever the agency needed, the policeman would give it to him to provide. Throughout the procedure the applicant was told to never return to Vietnam. The policeman facilitated his departure from Vietnam including all arrangements at the airport.
·He first got his passport in 2012 but he could not depart Vietnam at that time because it would affect his younger siblings and his mother who had been granted a PV in Australia, was sponsoring all of them but he realised his situation was a “bit insecure” so he decided not to be part of “that sponsorship at that time".
·By the end of 2012 his two siblings came to Australia and returned a few times to Vietnam to visit family.
·The applicant fears returning to Vietnam due to his religious activities, a belief that he is involved in anti-government activities and a troublemaker. He believes the authorities will detain him upon return, harass, beat and interrogate him and force him to declare who helped him and his son leave Vietnam and kill him because he was warned so many times about his activities before he left Vietnam. He has experienced a lot of psychological and physical abuse in the past.
·The applicant continued to be a part of the church until he left Vietnam and fears that he and applicant two will not be able to openly practice their religion if forced to return.
·The applicant’s legal representative submitted that the applicant fears persecution on the following refugee grounds:
oReligion as a Christian from Vietnam
oMembership of a particular social group: Christians in Vietnam, Christians in Vietnam accused of resisting government instructions and failed asylum seeker from Vietnam
oActual and/or imputed political opinion
The Tribunal notes the applicant’s claims as set out in his Application for a Protection Visa[7] and accompanying statutory declarations and supporting documentation[8] are largely consistent with the detail summarised by the delegate and set out in paragraph 15 above.
[7] See [file number] pages 2 to 9
[8] See [file number] pages 157 to 161, 151 to 156 (post interview statutory declaration), 114 to 123 (pre interview submission), 43 to 52 (statutory declaration plus supporting documentation re Form 866 Applications for both applicants noting the large number of bland passport pages in addition to the written submissions)
In brief the applicant arrived in Australia [in] April 2015 as the holder of a TU-580 Student Guardian visa with his son (applicant 2) who was the holder of a student visa. The applicant lodged his Application for a Protection Visa on 11 November 2016. The written submissions and supporting documentation summarised in paragraph 16 above outline the following:
·He began attending Mennonite church with his mother in 2000. He stopped attending his previous churches and instead began to attend church at the homes of various pastors in August 2001.
·The applicant and mother were often harassed by the police, given verbal warnings, stopped from worshipping and summoned to the police station to be questioned about their religion. In 2002 his mother took on a more senior role in the church and began preaching. The applicant was also baptised in 2002.
·After this baptism he was often summoned to the police station where he was slapped and hurt. A neighbourhood head told applicant that he and his mother were known as politically active and the church was really a front for action against the government. He had to continually change jobs because of harassment from the authorities.
·He was subjected to surveillance and had to report to the police weekly. His mother left [Vietnam] in 2005 because of police harassment. In 2006 was beaten after lodging a land complaint with the police. The applicant’s mother returned in 2007 to contest land that had been taken from her.
·The applicant sold his father’s property to raise money to pay for a guardian visa. His uncle organised for a high ranking police officer to assist him in lodging his visa application. This officer advised the applicant to never return to Vietnam.
·The applicant was constantly harassed by the police which caused him to lose a number of jobs and prevented him joining [Employer 1] and [Field 1] association. He was beaten by the police on several occasions. His movements were monitored and he had to report to the police on a weekly basis.
·He fears being harassed, beaten, arrested or killed by the police because of his religious activities. He fears being unable to practice his religion if he returns to Vietnam.
·The delegate found that the applicant was a low ranking Mennonite church member, that he may have had some conflict with the authorities regarding land issues but this did not prevent him from legally obtaining a passport and departing Vietnam, that the applicant’s mother is a member of a Mennonite church but does not have a profile with authorities, and that the applicant did not receive the help of a high ranking police office in preparing his visa application but rather used a migration agent.
·As such the delegate found applicant is not at risk of harm for his religious beliefs, his association with his mother or as a failed asylum seeker.
In addition to the material summarised above in paragraphs 12 to 17 the Departmental file contains numerous documents summarised by the Tribunal as follows:
·Doctor’s report re applicant 2[9]
[9] See [file number] page 126
·Certified copy of Newspaper article with English translation[10]
·Doctor report by Dr [C], dated 4 December 2017 re [Ms D] (sister of the applicant)[11]
·Protection Visa (subclass 866) grant letter-[Ms D], dated 9 March 2012[12]
·Various photos of the applicant with church members[13]
·Remarks and conclusion of people's committee of Ward, Village, Township and Field Unit[14]
·Offer of Apprenticeship[15]
·Decision re settlement of applicant petition for attention to grievances first instance[16]
·Complaint with insufficient evidence to proceed[17]
·Conclusion of Complaint[18]
·Settling of Complaint[19]
[10] See [file number] page 124
[11] See [file number] page 125
[12] See [file number] page 111
[13] See [file number] pages 127 to 128
[14] See [file number] pages 127 to 133
[15] See [file number] page 130
[16] See [file number] pages 127 to 133
[17] See [file number] page 132 to 133
[18] See [file number] page 137
[19] See [file number] page 134
On 23 January 2023 the applicant provided pre-hearing submissions[20] summarised by the Tribunal as follows:
[20] See Doc ID number 10669688
Legal Submissions
1.An itemised summary of documents previously submitted to the Department.
2.Background inclusive of detail of refugee grounds being as follows:
A.Religion, as a Mennonite Christian member.
B.Membership of a particular group, being:
1)Mennonite Christian in Vietnam accused of resisting government instructions
2)A person who fears harm from the authorities who enabled the Applicant and his son to flee Vietnam
C.Actual and/or imputed political opinion, due to his practice as a Mennonite Christian.
3.The applicant’s mother was granted protection visa on 20 April 2011 on the basis of a member of Mennonite Church and affiliation with 8406 group – a political group that advocates for democratic reforms in Vietnam. The applicant’s mother joined the Mennonite Church in 2000. The applicant’s mother had encouraged the applicant and his siblings to attend the church. The applicant then started to follow the Mennonite Church after seeing her involvement within the Mennonite Church towards the end of 2000. The applicant was around [age] years old at the time. The applicant felt a spiritual connection with the church. Despite numerous hassles from the government, the applicant remained a member of the church until he departed Vietnam. Due to his religious activities, the applicant is fearful of returning to Vietnam and fears harm the authorities.
4.Discussion of relevant law and authorities.
5.Particulars[21] of state harassment from local police and community monitors in the period 2001 to 2006 inclusive of numerous warnings, ongoing harassment, repeat summons to attend local police stations, interrogations, physical assault, violence, torture, demands he act as a spy, repeated dismissal from employment in a series of jobs because of police pressure on his employer, forced relocation in Hoi Chi Minh City because of constant police following, harassment, detention, assault and torture, house arrest, and discrimination in employment applications because of his religious beliefs and practices and the grant of a conditional licence [in Field 1] in Vietnam with he condition being he had to cease his complaint to the authorities about a land claim of his mother.
[21] See Doc ID number 10669688 pages 5 to 7
6.Delegate findings and detailed applicant response concerning the following:
D.Delays in Seeking Protection
E.Applicant’s Religious Profile
F.Applicant Mother profile
G.Applicant siblings return to Vietnam
H.Mother’s sponsorship and passport
I.Applicant departure from Vietnam
J.Risk Arising from Association with Mother and her Profile
K.Country Information and Country Profile supported by citations and links to relevant documentation

In addition to the information provided by way of pre-hearing submissions the applicant provided the Tribunal with a lengthy statutory declaration.[22] This statutory declaration responded in detail to adverse findings in the delegate’s decision concerning his Application for a Protection Visa. This statutory declaration addressed reasons for delay in seeking protection, applicant’s religious profile, applicant’s departure from Vietnam (inclusive of delay, his unlawful departure, the obtaining of a passport and a possible guardian visa for his son), the applicant’s mother’s profile, siblings return to Vietnam, ongoing regular police visits to his wife in Vietnam seeking detail as to the whereabouts of the second applicant and insisting upon his return to Vietnam to undertake military service, ongoing police attention to his wife including regular house visits and warnings from senior police officers who helped him depart Vietnam not to return to his home country for reason of his own safety.
[22] See Doc ID number 10669688 pages 38 to 48
In addition to the information provided by way of pre-hearing submissions the applicant provided the Tribunal with a copy of a letter[23] dated 21 December 2022 and signed by the Senior Pastor of the Vietnamese [Church 1 in Australia] that attested to his regular church attendance and participation in church activities from early 2015 until the present time.
[23] See Doc ID number 10669688 page 49
On 27 January 2023 the applicant provided a copy of an additional letter[24] from [Association 1] signed by a Mr [E] that set out the applicant was a “…man of great character, a hard working employee, and one that has earned my respect and high regards. Additionally, he is honourable and morally upstanding…”, that the applicant and his mother sought protection visa advice as early as 2015 from [Association 1], his role within the elderly Vietnamese community in Victoria and his view that should the applicant be “…need to return to Vietnam for any reason, he would be prosecuted by the Vietnamese secret service and security police. He would be tortured for silent, official departure out of the country in 2015. He would most certainly face extreme consequences, not only to himself, but also to his family still living in Vietnam…”
[24] See Document ID number 10682045
In evidence the applicant advised the Tribunal as follows:
·He lives in [Suburb 1] with his mother and son. His wife and daughter remain in Vietnam. He considers himself still to be married. His mother is an Australia citizen having been granted a Protection visa approximately 14 years ago on religious persecution grounds. His father is deceased. His mother and older sibling came together to live in Australia. He has 2 siblings living in Victoria. All are Australian citizens. His wife and [age] year old daughter live in Vietnam. His wife does not work and his daughter is in year [level]. He also has Vietnamese [Field 2] qualifications and works in Australia a 60 hour week in the [Field 2] industry earning approximately $4,000 per month net.
·He remits a significant sum of money to them on a monthly basis so that they might have an acceptable living standard in the home country. He remits extra on special occasions. He provided numerous remittance receipts that show a regular transfer of large sums of money to his wife every month since 2017. Some of these funds a re provided to local officials so that this family can lead a live of peace without harassment.
·He was educated in Vietnam and holds Vietnamese [Field 1] qualifications from [university]. All his classmates underwent the equivalent of practical training post university (apprenticeship) and now practice [Field 1]. He was denied entry to “apprenticeship” school to gain his [certificate] by relevant authorities because of his family involvement with religion over many years.
- In considerable detail he provided a written submission supplemented by direct answers to Tribunal questions that addressed ongoing personal violence, police detention without warrant or cause, assault, persecution, discrimination in employment, harassment by various agents of the state, discrimination in access to educational opportunity over a period of more than 3 decades to his mother, his siblings, his wife, his family and himself. This persecution still continues at time of decision and was recently extended to his son who currently resides in Australia as the holder of a Bridging visa when local police attended his wife’s home and demanded his son return to Vietnam to undergo army training.
·He provided detail of his departure from Vietnam and fees paid to police and airport officials to avoid delay or detention. He advised those airport official warned him not to return to Vietnam as they were fearful he might release their names to more senior officials.
·He attends a local church in [Suburb 1] and provided a favourable statement as to his role in the church and wider Vietnamese community.
·As outlined he lives with his school age son in [Suburb 1] along with his mother. His mother [has a medical condition] and in receipts of a disability pension.
·In some detail he advised of his conversion to Christianity more than 2 decades ago, guidance and advice from his mother who was also the subject of state harassment and persecution in Vietnam, his involvement in the official church, house churches and pastor engagement over time in Vietnam, the punishment, harassment and persecution he received all of his adult life in Vietnam from various levels of state authorities in Vietnam.
·In some detail he described police harassment, verbal threats, countless numbers of assaults, deliberate attacks in public, written reports, assault and detention in police stations, ongoing harassment, denial of employment opportunity and dismissal from employment when authorities informed his employer.
As summarised in paragraphs 19 and 20 above the applicant provided a lengthy written submission. That submission was contextualised and relevant to the Application for a Protection Visa. Statements in his original Application for a Protection Visa, submissions to the Department and submissions and evidence to the Tribunal and supporting documentation and letters have been largely consistent without embellishment. His evidence confirmed critical aspects of that written submission. In his written submission the applicant addressed adverse findings of the delegate and provided detailed explanations of relevant matters (see paragraph 10.6 D to J above).
In particular the Tribunal notes the applicant in his written submission provided lengthy and detailed explanations that addressed delays in seeking protection, his religious profile, his mother’s profile and some internal sibling disputation on occasion, his own departure from Vietnam and the level of assistance provided by police and their subordinate employees.
The Tribunal has considered this material at length and where relevant sought further explanation from the applicant.
The Tribunal is of the view the applicant is a member of a family in Vietnam well known to authorities because of their protracted religious observance over decades in the face of sustained and purposeful attack. Details of that attack can be found in this decision. The Tribunal notes those attacks now span 3 generations of the same family. The Tribunal gives no weight to concerns as to minor family disputation, the fact that siblings have returned to Vietnam on occasion or concerns about his departure from Vietnam.
The Tribunal gives considerable weight to the life experience of the applicant and his explanations of sustained state persecution over time. The Tribunal gives weight to the fact his mother has been granted a Protection Visa in Australia for reason of commitment to her faith and this faith is the same strand of Christianity the applicant adheres to in Vietnam and Australia. The Tribunal gives weight to the denial of income and educational opportunity experienced by the applicant as he grew from a boy to a man. The Tribunal gives weight to the direct evidence that he has been a committed and practising man of faith for over two decades. The Tribunal gives weight to the fact the applicant is heavily involved in his church in [Suburb 1]. The Tribunal gives weight to the fact the applicant has experienced over 20 years of persecution as his wife and daughter despite only most recently having adopted a Christian faith and continue to be the subject of harassment, harm and hurt.
The Tribunal finds as follows:
·The applicant practiced his religion in secret and openly in Vietnam.
·The applicant is perceived to have challenged the authorities and was interrogated on many occasions.
·Until now, the applicant’s wife has to bribe the authorities to avoid further harm.
·The applicant’s family is being monitored in Vietnam.
·The applicant is at risk on return due to this actual and imputed political opinion and religion and also at risk of being targeted by the authorities who had facilitated his departure from Vietnam.
·As the applicant has suffered persecution for over 20 years in Vietnam and his family in the home country still suffer from state harassment state protection is not available and internal relocation is not an option as it is both unavailable and unreasonable.
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information and numerous current and topical government and NGO reports, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his membership of a Christian church and adherent of a particular Christian faith. The Tribunal is satisfied the applicant would be subjected to serious harm for reason of his religious affiliation these being reasons that meet the provisions of s 5J(1)(a) of the Act if he is removed to Vietnam now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act and that the applicant meets the definition of refugee as set out is s 5H of the Act.
For the reasons 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).
Secondary Applicant
The secondary applicants is a member of the family unit of the applicant who is a person who satisfies the criteria set out in s 36(2)(a) of the Act
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act and the secondary applicants satisfy s 36(2)(b)(i) of the Migration Act.
Mark Bishop
Senior 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 1705

30 January 2023

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