1807762 (Refugee)

1807762 (Refugee) [2023] AATA 1449 (24 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1807762

COUNTRY OF REFERENCE: Vietnam
MEMBER:Mary Sheargold
DATE:24 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 March 2023 at 11:40am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – social media protests – arrest warrant – detention – physical assault – freedom of religion – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
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 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 13 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 23 September 2016. He was granted a [student] visa on 2 August 2013, arrived in Australia [in] August 2013, and has remained in Australia continuously since then. He was not interviewed by the delegate prior to the primary decision being made.
On 24 June 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing in July 2022.On 7 July 2022, the applicant’s representative provided a Notice of Withdrawal as the applicant’s representative along with an updated submission in support of the application. On 12 July 2022, the applicant returned the Tribunal’s Response to Hearing Invitation form and appeared to check the box advising the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
A Tribunal officer wrote to the applicant on 12 July 2022 to confirm his intention not to participate in a hearing in relation to his application. The applicant responded on 14 July 2022 stating that “I confirmed that on 28 July 2022, I will not attend the hearing and if you can decide on pagers document which has been send via email.” On 15 July 2022, the officer sent a further letter confirming that the hearing had been cancelled and the Tribunal would proceed to make a decision. No further correspondence has been received from the applicant. This matter has therefore been determined on the evidence available to the Tribunal.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
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.
The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.
CONSIDERATION OF Claims and evidence
Receiving country
The applicant’s Vietnamese nationality is not in issue. He has provided the Department and the Tribunal with a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, that was valid from [2013] and is due to expire on [2023]. The Department accepted his claimed nationality and identity shown in his passport, as does the Tribunal. The Tribunal finds that Vietnam is the applicant’s receiving country for the purposes of assessing his protection claims.
Relevant background, claims and evidence
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The mere fact that a person claims fear of persecution for a particular reason does not in itself establish the genuineness of that asserted fear. While an onus of proof is not imposed on an applicant in administrative inquiries and decision making, an applicant must nonetheless supply all the relevant facts surrounding their individual case, in as much detail as is necessary, to enable the decision maker to establish the relevant facts. A decision maker is not required to make an applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all allegations made by an applicant: MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
In assessing the application in circumstances where the applicant has declined the Tribunal’s invitation to attend a hearing to provide evidence and make arguments in support of his application, the Tribunal has had regard to the submissions supplied by the applicant’s representative on 7 July 2022, as well as the documents in the Department’s file.
The applicant first arrived in Australia [in] August 2013 where he studied English and then [subject 1] at [a named university]. He has not left Australia since his first arrival and currently holds a Subclass 030 bridging visa C. His student visa was due to expire on 30 August 2016, and this application for protection was made a week before that date, on 23 August 2016. At the time his application was made, the applicant provided the following information to the Department regarding his protection claims:
·he cannot accept the Vietnamese government; Vietnam is a dictatorial communist country that doesn't respect human rights, or freedom;
·the only way he could escape Vietnam was to apply for a student visa and study abroad in Australia, with hopes to improve on my work skills. However, after living in Australia, he discovered that Australia is a wonderful country with human rights as opposed to the “cruel” Vietnamese government;
·he has lost all hope in the Vietnamese justice system as government;
·he can no longer return to Vietnam because the police will arrest him as he “regularly go[es] on social media such as [platform name] to write and share the horrible crimes committed by that communist regime”;
·he is one of the people targeted by the Vietnamese government for protesting against the government, and treason, and that there is already a warrant for arrest issued in respect of himself and his family, and therefore he will be arrested at the airport immediately when he returns;
·he cannot move to another part of Vietnam because Vietnam has only one government that controls all the citizens, and wherever he goes to seek safety, he will be interrogated, and if the authorities discover that his family is protesting against the government, he will be detained and sent back to his home town “so that [he] would be faced the same sentence as per my family’s action”;
·he believes he will be harmed or mistreated if he returns to Vietnam because his family is currently protesting against the government regarding the “toxic environment” in his home town, and that the government makes warrant arrests at any time and at any day, and as a member of his family, he will suffer the same consequences;
·his family has been categorised as one of the protest groups that are considered “traitors” to the government; and
·he will face the same treatment wherever he goes in Vietnam and that the Vietnamese government will never provide protection to citizens who speak out against the government, and that he is more likely to be targeted because his family is expressing their anger and organising protests.
In summary, the applicant’s main claim for protection relates to his political opinion, that is, being opposed to the communist Vietnamese government. It is unclear whether the “toxic environment” referenced in the applicant’s claim relates to an environmental issue or a sociocultural issue. There is no specificity regarding the name of the protest group the applicant claims his family organises, nor to the frequency of any protests, nor the nature of those protests. The claims are vague and are not accompanied by any substantiating evidence.
After the applicant was invited to attend a hearing before the Tribunal, on 7 July 2022, his representative supplied the Tribunal with a 16-page submission in support of the application dated 4 July 2022, along with a notice withdrawing representation moving forward.
The representative’s submission is written in a combination of third person and first person statements. It is signed by the applicant and by [Ms A], and states that it was translated into the Vietnamese language, read to the applicant, and that he understands “the contents of this story”.
The submission states that whilst the applicant lived in Vietnam, he was “anti the Vietnamese Government” and he was involved in protecting religious groups within the Vietnamese community to rebel against the government’s authoritarian rule and to stand up for people’s rights. It is submitted that the group the applicant was involved with “would make numerous anti government posts on social media and also other media and he was an integral part of the group”. The applicant claims to be unable to provide evidence of these social media posts because he was scared for his life and that of his family.
The submission claims “the applicant will say he was informed by his parents over the phone that the authorities had come to his family’s house seeking his whereabouts. The applicant was scared of having such evidence and that is the reason why it was deleted.” The submission claims that the applicant has no specific memory of the posts he wrote, “but they were clearly anti Government and [were made] before he came to Australia,” and that the situation in Vietnam is that even if you inadvertently publish an article on a platform such as [platform name], even if you are not the author, the government will demand you take the post down or you will face imprisonment.
The submission goes on to claim that because of this, the articles that the applicant posted “would have been quickly…removed and therefore it is impossible to obtain copies of such posts and provide to you. For example, you can find material on torture and abuse in Australian prisons online, however in contrast, you will not find any materials on torture or abuse in Vietnamese prisons.”
Then it goes on to say that:
Vietnam is a communist Country, from what his parents and he have observed firsthand and know very well what happens to those who are deemed enemies of the state. He will say that he was arrested before and had to bribe the authorities, namely the police to secure his release, is nothing short of disturbing. He says there is a lack of protection of any human rights in Vietnam. The Applicant has witnessed firsthand, police brutality where they have assaulted and beaten innocent people with poles, tazers, and other weapons, for not resolving even minor issues raised by them, or making payment of fines.
He says that his parents have been questioned by the Vietnamese authorities and they have been threatened when questioned about his whereabouts.
There are new claims in the submission, such as the fact the applicant was a practising Buddhist while he lived in Vietnam, and that the decision-maker did not address this aspect of his application. The applicant claims to continue to practise his religion at the [named] Buddhist Temple in [Suburb 1] without interference from the government. He claims that “if forced to return to Vietnam, I intend to continue to practice my religion, however I fear persecution from the government authorities”. The Tribunal notes that on his application form for this visa, the applicant declared his religion to be Catholic. The Tribunal has not been able to identify any information in the Department’s file in which the applicant has made claims of fearing persecution because of his religion, either Buddhist or Catholic, and given the stark contradiction in his claimed religion that is not explained or evidenced in any manner, the Tribunal gives little weight to this passing reference to alleged religious persecution.
The applicant says he will face significant harm from the Vietnamese government authorities because of his imputed political opinion and his religion, and that for the reasons stated above, there is a real risk he will face significant harm. He claims that on the evidence available to the Tribunal, there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia and returned to Vietnam, there is a real risk that he will suffer significant harm.

The applicant and representative have provided the Tribunal with country information supporting the applicant’s protection claims, highlighting that the situation has not improved. That country information is sourced from:
·2021 Report on International Religious Freedom: Vietnam by the Office of International Religious Freedom;
·Vietnam: Freedom in the World 2021 Country Report from Freedom House;
·World Report 2021: Vietnam from Human Rights Watch; and
·the US State Department’s 2004 report on human rights practices.
In summary, the country information extracted from each of these reports and presented to the Tribunal claims that religious groups continue to face discrimination and persecution in Vietnam, and that freedom of expression and the capacity to publish materials is severely curtailed. There are reports regarding political prisoners being held without charge, of the use of new cyber safety laws introduced in 2019 to restrict online communications, and of the Covid-19 pandemic being exploited as a basis for further restricting online communications.
The Tribunal has not been provided with sufficient evidence at review to establish the veracity of any of the applicant’s claims. There is no basis on which the Tribunal can be satisfied that the applicant has a history of involvement with anti-government protest groups in Vietnam, or that his family has ever protested against the government. No evidence has been provided to substantiate his claims regarding anti-government social media posts made while he lived in Vietnam. No copies of summonses nor warrants for arrest have been provided. His religion claimed in his pre-hearing submission is different from that claimed in his application. The contradictions between the pre-hearing submission and the application form have not been explained by the applicant.
Well-founded fear of persecution in the future
The Tribunal notes the applicant’s claim to fear persecution in Vietnam relates to his political opinion, being that he is opposed to the communist ideology of the Vietnamese Government. His political opinion is more closely related to his contempt for the manner in which the Vietnamese Government treats certain groups rather than a refutation of the Communist ideology underpinning the authority of the Vietnamese Government per se.
The Tribunal has considered the DFAT Country Information Report about the treatment of political activists and dissidents in Vietnam. Relevantly, DFAT explains:
[3.49]   Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated.
[3.52]   The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information…opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
[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.
The information in DFAT’s report is largely consistent with the information provided by the applicant in the country information sourced from third parties and included in his pre-hearing submission.
However, there is no evidence before the Tribunal to indicate that either the applicant or any member of his family has ever suffered any harm or persecution in Vietnam as a result of their political opinion or protesting activities. The Tribunal notes the applicant has not articulated his concerns as to what may happen to him should he be returned to Vietnam. There is no evidence that the applicant faced any difficulty at the airport when he left Vietnam in 2013.
As DFAT’s report suggests, it is difficult to make an overall assessment of risks to an activist given the lack of clear patterns indicating who may be arrested or when. Nonetheless, there is no evidence available to support a contention that the Vietnamese Government at any level seeks to arrest and detain the applicant or otherwise commute against him ‘significant harm’ as defined in s.36(2A) of the Act. The Tribunal notes he was able to depart Vietnam lawfully in 2013 using his valid Vietnamese passport. There is no evidence to suggest that the applicant was detained at any time.
There is no evidence available at review to demonstrate that the applicant is active against the Vietnamese Government through social media or any other means while he has been residing in Australia. Because the applicant has elected not to engage with the review process but has invited the Tribunal to make its decision based on the written information available to it without any additional evidence being provided, it is difficult for the Tribunal to qualify or quantify the applicant’s current level of fear of serious harm if he is returned to Vietnam. Relying on the evidence provided by the applicant and the country information outlined above, the Tribunal is satisfied that, having considered the information available regarding the risks to political activists, the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason raised in his application or arising on the facts if he was returned to Vietnam.
Therefore, I find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a) of the Act.
The complementary protection ground
For the same reasons that I have found there is no real chance of serious harm, I find that the ‘real risk’ element of the test in s.36(2)(aa) of the Act has not been met.[1] I find that there are no substantial grounds before me for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk he will suffer significant harm: s.36(2)(aa).
[1] see, e.g., MIAC v SZQRB [2013] FCAFC 33 at [245]-[246] (Lander and Gordon JJ)
Member of the same family unit
There is no suggestion that the applicant satisfies 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 applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mary Sheargold
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 1449

24 March 2023

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Immigration

Administrative Law

Statutory Interpretation

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Natural Justice

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Standing

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