1814476 (Refugee)

1814476 (Refugee) [2022] AATA 3595 (1 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  1814476
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Wayne Pennell
DATE:1 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 August 2022 at 10:56am
CATCHWORDS
REFUGEE – Protection visa – Vietnam – political opinion – anti-government views – concerns about human rights abuses – suppression of religion – reported to local authorities – vague claims – no evidence – lawful departure - not of interest to Vietnamese authorities or Vietnamese government – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
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 to refuse to grant the applicant a protection visa pursuant to section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]Delegate’s decision made on 08/05/2018.
The applicant, who claims to be a citizen of Vietnam, originally travelled to Australia on a visitor visa,[2] arriving [in] February 2018. That visitor’s visa was only valid until [May] 2018. Within four weeks of arriving in Australia, the applicant applied for a protection visa.[3]
[2]Visitor visa issued on 07/12/2017.
[3]On 03/04/2018.
The applicant’s claims for protection relate to him seeking to avoid arrest because when he lived in Vietnam, he regularly met with friends at a coffee shop or at parties where he expressed anti-government comments and concerns about human rights abuses and the suppression of religion. His opinion was secretly reported to the local authorities.
The applicant claimed that he feared harm because he expressed his political opinion and undertook those activities; he also feared harm because his friends have been arrested for their political activities in Vietnam; and if he returns to Vietnam, he will face a similar fate to that of his friends.
The delegate’s refusal to grant the applicant a protection visa was on the basis that he did not meet the criteria of a refugee to whom Australia had protection obligations;[4] and he did not satisfy the delegate that he possessed a well-founded fear of persecution if he were to return to Vietnam.[5]
[4]Migration Act1958 (Cth), s 5H(1)(a) and s 36(2)(a).
[5]Migration Act1958 (Cth), s 5J(1)(a).
Subsequently, the applicant filed an application with the Tribunal to review the delegate’s decision.[6]
[6]On 18/05/2018.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), ss 5J(2)–(6) and ss 5K–5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhumane treatment or punishment; or they will be subjected to degrading treatment or punishment.[16] Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhumane treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
[17]Migration Act 1958 (Cth), s 36(2B).
Country of reference and applicant’s identity
The applicant claims to be a citizen of Vietnam. He previously provided a copy of his passport issued [in] 2016. The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[19]
[19]Migration Act 1958 (Cth), s 36(3).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE
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. On 6 July 2022, the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal undertaking the review and making a decision without him appearing personally before the Tribunal. Therefore, this matter has been determined on the evidence available to the Tribunal.
The applicant’s claims
In his application, the applicant said his initial reason for leaving Vietnam was to visit his sisters in Australia. He went on to propose that he wants to remain in Australia to avoid being arrested by the local communist cadres if he returned to Vietnam. He alluded to a vague, weak and tenuous reference to his fear of being arrested because he previously expressed private criticism or comments about the Vietnam government’s policy relating to human rights and the suppression of religion. Those opinions and comments were made privately when he met his friends at a coffee shop or at parties. He suggested that those opinions and comments were secretly reported to the local Vietnamese authorities.
The applicant also claimed he feared returning to Vietnam because some of his friends had been detained and imprisoned by the local authority for having an opinion against government policies, and he felt that if he did return, he would receive the same fate. It is noted that the applicant provided no evidence to support any basis to this claim and the Tribunal rejects this claim because of its vagueness.
In his application, the applicant suggested that he would not be able to relocate to another part of Vietnam because the Vietnamese government uses the household registration book to strictly control the movement of the citizens, particularly those that have an opinion against or promote a campaign against the policies of the government. Those people are not permitted to leave their local area and move to another part of the country to seek safety. This claim is discussed later in these reasons at paragraph 29.
In his application, the applicant claimed that after arriving in Australia he was told something by his siblings and cousins which gave him a well-founded fear of persecution if he returned to Vietnam. He proposes that because of what was said, he needs protection. He wants to stay in Australia until there is a change in the political system in Vietnam.
To support his claims the applicant provided to the Tribunal (by way of an email from his representative) a number of documents including a statutory declaration,[20] a marriage certificate showing that he was married,[21] documentation showing that the Department of Home Affairs issued him a bridging visa[22] and copies of two income tax return estimates for the financial years ending 2020 and 2021. The email correspondence received by the Tribunal from the applicant’s representative suggests that a copy of the applicant’s current driver’s licence was included with the other documents, however the copy of the licence was not enclosed. The Tribunal does not accept that any of that material supports the applicant’s claims. The only reference made within the material which reflects any connection to the claims made in his application is a brief comment at the very beginning of his statutory declaration that it was:
at the advice of my siblings and cousins in Australia that if I returned back to Vietnam I would be arrested or summonsed for interrogation by the local police.[23]
[20]Dated 04/07/2022.
[21]The applicant was married on [date]/10/2021.
[22]On 08/11/2021
[23]Applicant’s statutory declaration dated 04/07/2022.
Other information contained within his statutory declaration suggests that the applicant divorced his now ex-wife in August 2018 and he harboured sad feelings from his ex-wife’s family, by which the Tribunal understands that he meant it was his ex-wife’s family who harboured bad feelings towards him. Since his arrival in Australia, he endured sadness and loneliness before meeting and falling in love with his current wife. They are now married and living together. Although the applicant has divorced his ex-wife, and married his current wife, the Tribunal is not convinced that either of those events provides any probative value to his claims of having a well-founded fear of persecution if he was to return to Vietnam.
The Tribunal particularly notes that the applicant did not depose in his statutory declaration that the information which caused him to possess a well-founded fear of persecution was supported or corroborated by any family member, friend or associate who lives in Vietnam. His claim is that he was told by his siblings in Australia that he would be arrested if he returned to Vietnam, yet none of his siblings or cousins in Australia who purportedly gave him that information provided any evidence in the form of an affidavit, statement or statutory declaration to confirm his claim.
The Tribunal also notes that neither the applicant’s application or his statutory declaration suggests that he was actively involved in publicly criticising or advocating opposition to the Vietnamese government’s policies about human rights and religion. His position is that any criticism he expressed was in private conversations between friends and associates over a cup of coffee and at parties, and it was only after he arrived in Australia that he was told by siblings that he would be arrested. It was not his friends or relatives in Vietnam that told him, but his siblings in Australia. His explanations about this claim are vague, tenuous and unsubstantiated and are not accepted by the Tribunal.
Turning to the applicant’s explanation as to his primary motivation to travel to Australia. He claims that it was to escape Vietnam because of the views he expressed. The Tribunal rejects this claim and particularly notes the comments made in his application where he suggested that his reason for departing Vietnam was:
First is for visiting sisters in Australia.[24]
[24]Applicant’s application at page 36.
The applicant goes on to say that he feared being arrested by the local communist cadre for expressing his opinion about the Vietnamese government’s policies on religion and human rights. As already observed in these reasons, the Tribunal considers that his claim about fearing arrest is a vague and ambiguous claim which is devoid of any specific detail. For the reasons already given, the Tribunal rejects this claim.
Within his claims, the applicant claimed that he was being monitored for his political activities in Vietnam, however this claim is not supported on the evidence he presents. Within his own statutory declaration, he deposed that it was only when he came to Australia that he was told by his siblings that he would be arrested or summonsed for interrogation if he returned to Vietnam. Therefore, it is reasonable for the Tribunal to conclude that he is not a person of interest to the authorities in Vietnam because of his political opinions, or for any other reason.
The DFAT country information report in relation to Vietnam (DFAT Report) provides that activists and nonconformists in Vietnam face harassment, intimidation and surveillance by the police;[25] none of which the applicant has claimed to have experienced. Furthermore, the DFAT Report goes on to provide that political dissidents or those who are critical of the government can be prevented from leaving Vietnam. Given that the applicant was able to possess a validly issued passport and was able to engage in an uninhibited and lawful departure from Vietnam, the facts presented within his claims do not support any hypothesis he was or is a person of interest to the Vietnamese authorities or the Vietnamese government. He does not claim that he has been targeted by the Vietnamese authorities or the Vietnamese government; and he was able to lawfully depart Vietnam. Although activists are free to move around Vietnam (albeit while monitored), they are prevented from going abroad.[26] Therefore, the Tribunal concludes that he is not a person of interest to the Vietnamese authorities or the Vietnamese government.
[25]DFAT Country Information Report dated 11/01/2022, paragraphs 3.49–3.57.
[26]DFAT Country Information Report dated 11/01/2022, paragraph 3.56.
In respect to the applicant’s claim that he would not be able to relocate to another part of Vietnam because the Vietnamese government uses the household registration book to strictly control the movement of citizens, particularly those that have an opinion against or promote a campaign against the policies of the government. He said those people are not permitted to leave their local area and move to another part of the country to seek safety. The Tribunal is not convinced the applicant is the subject of close scrutiny by the Vietnamese authorities to the extent that he would not be able to relocate. It is not his case, and he certainly has not provided evidence of being questioned, or being aware that he was a wanted person, or that he was a person of interest in Vietnam prior to his departure to Australia. It was only when he got to Australia that he was allegedly informed by his siblings and relatives not to return home. The evidence simply does not support his propositions and the Tribunal observes that he seemingly enjoyed significant freedom within Vietnam so as to be issued with a valid passport and was able to lawfully depart Vietnam and travel to Australia. His claim that he could not relocate within Vietnam is rejected.
The Tribunal is of the view that any reasonable assessment based on all the claims raised by the applicant and the evidence he used to support those claims would conclude that there is not a real chance of him being subjected to persecution in Vietnam for any of the reasons provided in section 5J(1)(a) of the Act, in particular his claim that he expressed a particular political opinion.
Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.
Returning to the remainder of the material the applicant provided to the Tribunal, it is noted that he deposed that for the past three years he has been employed on a full-time basis. As proof of his employment, he provided income tax return estimates for the financial years ending 2020 and 2021. He said that his income covered his daily expenses as his wife has been permitted to work under the conditions of a contributory parent visa. He further deposed that his wife has been diagnosed with multiple medical problems and he cared for her. It is noted that he did not indicate the nature of his wife’s medical problems. None of that material goes to support any hypothesis that he has a well-founded fear of persecution if he returned to Vietnam.

The Tribunal notes that although the applicant provided income tax return estimates, it was suggested the documents were the applicant’s individual tax returns. To be clear, they are not tax returns, they are electronically produced documents which are identified as ‘Income Tax Return Tax Estimates’, and they appear to have been produced by an electronic accounting system similar to either Quickbooks or MYOB. By their very nature, they are only estimates of his income. It is observed that the documents identify a personal Australian Taxation Office (ATO) tax file number (TFN), therefore suggesting the applicant is registered with the ATO and has been provided with a TFN. Yet it is noted that no ATO assessment notices or tax returns for the financial years ending 2020 and 2021 were provided to validate that he was working as he claimed. Nor were there any supporting documents such as a letter, reference, statutory declaration or affidavit from his employer to validate his employment.
Although the applicant’s documents just discussed have been noted by the Tribunal, they provide no probative value to his claim that he has a well-founded fear of persecution if he returned to Vietnam, and as such no weight is given to those documents in the determination of this matter.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm.
Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[27] the Tribunal has considered the alternative criterion.[28] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[29]
[27]Migration Act 1958 (Cth), s 36(2)(a).
[28]Migration Act 1958 (Cth), s 36(2)(aa).
[29]Migration Act 1958 (Cth), s 36(2A).
Because of the above findings, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant will suffer significant harm for any of the reasons he claimed if he returns to Vietnam. Helpfully the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[30]
[30]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
It is noted by the Tribunal that the applicant claims he feared returning to Vietnam because of his background of privately criticising the government’s policies on human rights and religion, and he was told that if he went back to Vietnam, he would be persecuted by being arrested or summonsed for interrogation by the local police.
As already indicated above, the Tribunal has rejected the applicant’s claims that he possesses a well-founded fear of persecution by the Vietnamese authorities, and the Tribunal does not accept that he will be arrested, detained and interrogated as he claims. The Tribunal does not accept that he faces a real risk of significant harm in Vietnam for reasons of any his political views.
The Tribunal has considered the applicant’s return to Vietnam and notes the information contained within the DFAT Report provides that being a failed asylum seeker in Vietnam is not generally stigmatised and there is no known case of returnees being denied citizenship.[31] The DFAT Report further provides that it is only occasionally the Vietnamese authorities question returnees from Australia upon their arrival back in Vietnam. That interview process generally takes about two hours and only focuses on obtaining information about whether the applicant had engaged in any illegal activity.[32]
[31]DFAT Country Information Report dated 11/01/2022, paragraph 5.34.
[32]DFAT Country Information Report dated 11/01/2022, paragraph 5.31.
When applying the above considerations reached in respect to the applicant’s case and the material he relies upon, the Tribunal does not accept that the evidence supports any hypotheses that the applicant faces any real risk of significant harm for reasons of his return to Vietnam as a failed asylum seeker.
Having considered all his claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if the applicant returns to Vietnam now or in the reasonably foreseeable future, he will not be arbitrarily deprived of life; the death penalty will not be carried out on him; he will not be subjected to torture or to cruel or inhuman treatment or punishment; nor will he be subjected to degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm as defined in section 36(2A) of the Act. Thus, the Tribunal finds the applicant does not satisfy the criterion as provided in section 36(2)(aa) of the Act.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance in the reasonably foreseeable future the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, he will be exposed to a real risk of suffering significant harm.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
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.
…

[2022] AATA 3595

1 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing