1814698 (Refugee)

[2024] AATA 3303

1814698 (Refugee) [2024] AATA 3303 (29 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814698

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Gabrielle Deal

DATE:29 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 June 2024 at 6:29pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Protestant Christian – subtle societal discrimination – degree of harm – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424AA
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants comprise a husband (Applicant Husband) and his wife (Applicant Wife) and their 2 eldest sons, aged about [age] (Applicant Son 1) and [age] years of age (Applicant Son 2). They claim to be citizens of Vietnam. They applied for the protection visas on 5 February 2018.

3. On 4 May 2018 the delegate refused to grant the protection visas. While the delegate appeared to accept the applicants were Christians, the delegate found claims they faced harm from authorities on account of this unsupported by the country information, and overall, found the applicants did not meet the relevant definition of refugee, did not face a real risk of significant harm, and were not persons in respect of whom Australia had protection obligations.

4. The Applicant Husband and Applicant Wife appeared before the Tribunal on 2 May 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. 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 their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Mandatory considerations

11. 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.

    CLAIMS

12. The applicants’ claims can be summarised as follows:

    ·The Applicant Husband is from Long An, Vietnam, and has family there including his father who lives in the family home in the capital city. The Applicant Wife is from Hanoi and her mother lives there in the family home and her brother lives near her mother and has his own family. They are married and have had 3 sons since being in Australia. They have both completed primary and secondary schooling and Higher Education degrees and have run their own [business] in Australia for the last odd 10 years.

    ·They are Protestant Christians and fear official and societal harm and discrimination on account of their faith. They experienced subtle societal discrimination in the past in Vietnam on account of their faith. There was only one old church in Hanoi making it difficult to attend church in the past. If they were to return to Vietnam, their children would return with them and are used to the greater tolerance for the faith in Australia such that returning to Vietnam and experiencing discrimination on account of their faith will be a shock. 

    ·They have not returned to Vietnam for some 10 years. Their children have always lived in Australia and attended school in Australia, which is what they are used to, they do not speak Vietnamese well, and it will be difficult to find them a government school.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The applicants have consistently claimed to be citizens of Vietnam, not to be citizens of any other country, and to not have a right to reside elsewhere, and based on this and their Vietnamese passports I accept this. I consider Vietnam the receiving country. Based on their passports I also consider the Applicant Husband and Wife are both in their [specified age range]. 

15. While in the protection visa application the Applicant Wife said she would be making her own claims and referred to a submission in support, as was noted at hearing, the only submission provided was that by the Applicant Husband. At hearing I confirmed with her that that was the submission to which she was referring, and she confirmed that was correct and made some additional claims at hearing orally. Both applicants provided some additional details in relation to their backgrounds not included in the protection visa application provided at the primary stage, as the Applicant Husband said they did not realise they had to provide these background details, which I am willing to accept as plausible in relation to more minor background details.

16. The Applicant Husband and Wife have consistently claimed to have married in Long An, Vietnam, in 2007, and that the Applicant Husband first travelled to Australia in 1998, and the Applicant Wife in 2009, that they had their first son in Australia in [year], their second son in Australia in [year], and at hearing the Applicant Husband said that they had a third son in [year] (who appears to have been born after the delegate made their decision). They have provided supporting identity documents in relation to their sons including images, passports, and Australian Citizenship Certificates for the 2 eldest sons. They have both consistently claimed to have owned and operated a [business] together in Australia since about 2014 and that they continue to operate this in Australia. I accept these consistent and supported claims.

17. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). One of the issues in this case is whether Applicant Son 1 and 2 are Australian citizens. Applicant Son 1 and 2 are about [age] and [age] years, respectively, they were both born in Australia. The applicants provided the Tribunal with Australian Citizenship certificates Applicant Son 1 and 2 and advised at hearing that they had been granted Australian citizenship after having been born and remaining in Australia for the last 10 years. The Australian Citizenship certificates show they became Australian citizens on [in] October 2021, [and] December 2021, respectively. The Tribunal is satisfied on the evidence before it that Applicant Son 1 and 2 are Australian citizens. It follows that Applicant Son 1 and 2 do not satisfy the requirements of s 36(2), and cannot be granted protection visas.

18. The Applicant Husband has constantly claimed he was born in Long An and lived there in the family home since birth until first leaving for Australia, at hearing he explained his father inherited this home from his own father and still lived there with his father’s wife, and that his father was a business man who used to operate a [factory] but that he was now retired and lived with his wife off the rental from the factory. He has consistently claimed to have a brother and sister and at hearing he confirmed his brother lived in Long An, but at a different house than his parents, and that he operated a [business] and had his own family. He said his sister travelled to Australia in about 2003, and after studying in Australia she applied for Permanent Residency and is now an Australian citizen and has a family and works as a [Occupation 1] in Australia. The Applicant Husband has consistently claimed to have lived at various addresses in Victoria more recently, and at hearing said that they were fixing up a house so had recently moved to another location. He has also consistently claimed to have undertaken further studies in Australia and at hearing said he completed primary and secondary school, 6 months of university in Vietnam, studied at Tafe doing a “Diplomat” course but that when this course was discontinued by Tafe he was asked to move into another course and he commenced a Bachelor of [Discipline 1] at [University 1], and after a year chose to move across to a Bachelor of [Discipline 2] in [City 1] which he completed over 4 years, all the while working casually [in specified job]. The Applicant Husband’s passport states he was born in Long An. Based on the passport, broadly consistent, plausible, and detailed evidence, I accept the Applicant Husband’s background claims regarding his address, education, and work history, and in relation to family composition, location, and work.

19. The Applicant Wife has consistently claimed her father passed away some time ago, and that her mother and brother are in Vietnam. At hearing she said her mother owned the family home in Hanoi, where she grew up, and that her brother had his own house in Hanoi next to this house. She said her mother was renovating her house so living with her brother now, and that her brother also has his own family. Her brother worked at a factory and helped their mother, and her mother was also receiving some support payments as she had an accident at work in the past. At hearing the Applicant Wife confirmed she grew up in the family home in Hanoi, completed primary and secondary schooling, undertook studies at a [specified education provider] in Vietnam, and at hearing provided additional details in relation to this including that it took 5 years to complete. She also said she worked as a [Occupation 2] briefly in Vietnam, had not undertaken any studies in Australia, and had worked in the family [business] since it opened in about 2014 in Australia. Her passport shows she was born in Hanoi. Based on the passport, broadly consistent, plausible, and detailed evidence, I accept the Applicant Wife’s background claims regarding her address, education, and work history, and in relation to family composition, location, and work.

20. At hearing I asked the applicants about their past travel and they both said they had returned to Vietnam from Australia since first arriving in Australia, not in the last 10 or so years, but prior to that. The Applicant Husband said that when he travelled to Australia to study, he often returned home to Vietnam for holidays and the summer, and sometimes during semester break for a couple of weeks, no more than 1 month. The Applicant Wife said the last time she returned to Vietnam was in 2015 but that she returned in about 2010, 2012, and 2015, and each time would go back to visit family in Hanoi and Long An (and mentioned some other historical overseas travel). At hearing I advised the applicants that I had obtained their migration histories which showed the Applicant Husband had first travelled to Australia in 1999, and the Applicant Wife in 2015, that they had both applied for numerous and varied visas in Australia over the years, and had left and returned to Australia multiple times over the years (over 10 times for the Applicant Husband and about 4 times for the Applicant Wife sometimes with the older sons), which they acknowledged, and that they only applied for the protection visa in 2018. I said this migration history might lead me to conclude that they did not genuinely fear harm in Vietnam for the reasons claimed. I put this information to them under s 424AA for their comment. The Applicant Husband indicated they understood the relevance of this information and the consequences of it being relied on in affirming their decision and that he would provide a response on their behalf orally at hearing, rather than seeking an adjournment. He said that they did not apply earlier as they thought they could set up a family in Australia and have freedom of faith in Australia, that they applied for the visa because if they return to Vietnam there will be a significant impact on their family. He also indicated their application for permanent residency was not successful and blamed this failure on the dishonesty of an agent, who seems to have left them down when he did not tell them he was disqualified and when they followed up with him, he had disappeared. At hearing the Applicant Husband said that their children had been brought up in Australia, and feel free to be able to talk about their faith, and that if they return and talk about it in Vietnam it would not be good, and they would experience discrimination which they have not experienced in the past. He said that they would not be able to say “thank you Jesus” or “forgive us” in a public place in Vietnam as that would be unusual in Vietnam. The Applicant Wife said it was hard to get to church every Sunday in Vietnam because in Hanoi there was only 1 church, it was so busy, old, small, and there were very few pastors.

21. At hearing the applicants said they had spoken and about where they would return to in Vietnam if they had to return. They said that Long An was more tolerant of different faiths, while Hanoi had more jobs but was less tolerant of different faiths. The Applicant Wife said that it was hard to go to church in Hanoi as there was only 1 church, it was very busy and hard to get into, and there were few pastors. At hearing I noted it appeared “Tan An” which was the particular city where the Applicant Husband’s family home was located, was the capital city of Long An, and the Applicant Husband agreed it was a large city. Based on their claims to fear harm on account of their faith, indications that they found Long An more tolerant of religious minorities than Hanoi, that Tan An in Long An while not as big as Hanoi is still a major city, where the Applicant Husband lived in that area most of his life, and the Applicant Wife and the oldest sons have stayed in the past, and where they have family,  I consider that if they were to return to Vietnam, they would very likely return to  Tan An in Long An.  

22. At the primary stage the applicants’ main claim was that they feared harm in Vietnam on account of their Christian faith. They have consistently claimed to be Christians and at hearing the Applicant Husband said they went to a Vietnamese Church in [Suburb 1], but that as long as it was a Christian church, he could attend any church which he had done in the past, noting he had attended one near his university at one stage. While he could not tell me what denomination they were, the Applicant Wife clarified at hearing in front of the Applicant Husband that they were Protestant. When questioned in more detail about their faith the Applicant Husband said he became Christian because his father converted to Christianity after experiencing some business issues in the past, and his wife said that she eventually followed her husband into the faith years later. The Applicant Husband said they went to Church on Sundays and that when in Vietnam he went to the local church in Long An. His wife also said they practised their faith by going to church every Sunday in Australia, and she tried to go to church in Hanoi, but it was a crowed city with millions of people and few churches and pastors, so it was hard to get into the church. She said that “home group” was the main thing but that it was illegal in Vietnam, so she did not do that when in Vietnam. They also said their children were Christians. After the hearing they provided images from pamphlets for church they attend in [Suburb 1], Victoria, which contains a photo of them with their sons, and what appears to be a baptism certificate, and I accept they are congregants and attend that church as claimed. While DFAT reports that Protestants Christians are mostly members of ethnic minorities, and the applicants do not claim to be members of any ethnic minority, it also states that Kinh Protestant communities exist especially in the south which is where the Applicant Husband and his father are from. Based on this and the consistent and detailed evidence and supporting documentation I accept they are Protestant Christians who practise their faith by attending church regularly as they have done in both Australia and Vietnam in the past. 

1. In the statement forming part of the protection visa application provided at the primary stage, while claiming they had not suffered harm in the past, made a series of generalised claims in relation to their fears of harm on account of being Christians. In this regard they claim Montagnard Christians in Vietnams Central Highlands are persecuted and that this demonstrates the harm suffered by religions minorities in Vietnam. They claim Christians are persecuted by local and national governments, tribes, and the community at large. Claims were made about how advocates for religious freedom were imprisoned with no hope of release because of protests by Christians objecting to land seizure. It was claimed Christians were subjected to significant harassment, intimidation, property destruction, detention, beatings and forced renunciation of faith, and that if they did not renunciate their faith they were threatened with loss of jobs and not being able to send their children to public school, torture, imprisonment, and death. They were unable to print bibles. As Christianity was practised openly it was easily exposed to a high risk of being identified and church meetings were regularly disrupted and sometimes not allowed at all. Christians were repeatedly killed, churches constantly attacked, pastors and believers abducted, and their lands confiscated. Christians and churches were seen as a dangerous Western influence that could mobilise large numbers. The cumulative effects of this were likely to entail serious psychological harm. They feared harm including torture, mental harm, and discrimination, from local officials, villagers, and friends, and claim the state officially tolerates this.

2. When asked about these claims at hearing the Applicant Husband said that the churches in Australia were different and that you could worship in small groups, but in Vietnam that was not normal and that the Vietnamese government did not like people worshipping at home. He said his father used to be a member of a small group of 20 people who undertook bible studies at home and the government told them that if they wanted to do this they would have to apply. He also said they would be discriminated against for their faith in Vietnam. When I noted he had not previously claimed any personal incidents of past harm in Vietnam he said that once when he was with his wife in Hanoi someone asked him what his faith was and when he told them they asked him why and said it was bad and they gave him a weird look. He said they had not been back to Vietnam for some time, but that they were concerned about subtle discrimination from the community because of their faith such as weird looks. At hearing I noted they had only claimed to have experienced subtle discrimination from the community such as weird looks or discouraging comments about Christianity but that I may find that this not raise to the level of serious harm or significant harm as I had explained earlier at hearing were some of the requirements for the grant of protection in Australia. The Applicant Husband said that if a person worshipped at home in a small group the authorities would stop that, and I noted that they had not claimed they did this, and in fact the Applicant Wife said earlier at hearing that because she believed this was illegal, she would not do this in Vietnam. I noted at hearing that other than subtle societal discrimination they had not otherwise claimed to have experienced harm and asked why they thought they would if they were to return. The Applicant Husband said they were used to this subtle discrimination in Vietnam, but their children were not, and it would be hard for them, and they would experience this. He said that the 2 oldest sons who are Australian citizens would return with them if they were to return to Vietnam, which given they are minors I accept as plausible.

3. As was noted at hearing a lot of their generalised claims were not entirely consistent with the country information. As noted at hearing the country information[1] reports that Vietnam is an atheist state, and the Constitution guarantees the right to freedom of belief and religion. The sources report that since the Vietnam War religious groups have been required to register with the Vietnamese government. In 2018 the Law on Belief came into effect which also requires religious activities to be registered and in this way the government can exercise more control over certain activities which can be disallowed on “national security” or “morality grounds”. Laws also place restrictions on what religious material can be published and requires government approval and only publishers with permission are able to print the bible. Key distinctions between religious groups in Vietnam are reportedly between those that are registered and those that are not registered, and those that are perceived to have a political or foreign agenda and those that are not. Different people in different religions in different areas also reportedly have a different experience depending on the local authorities, with those in cities reported to be less likely to experience official interference, while those associated with unregistered religious groups generally facing more restrictions, which varies depending on religion, ethnicity, and any perceived or actual involvement in religious freedom, advocacy, or political activism. The majority of victims of government interference were members of unregistered groups engaged in political or human rights advocacy activities or with ties to overseas individuals and organisations that were outspoken and crucial of authorities. It is reported that Protestant groups can face bureaucratic difficulties, for example, gatherings might be banned on technicalities such as not having approved lists of attendees. It reports some unregistered Protestant groups are denied registration and that certain unregistered groups, including ethnic minority Protestant groups in the Central Highlands, had reported administrative difficulties and inability to access social welfare benefits. It reports of official harassment of H’mong Protestants of unregistered groups, such as them having assets seized by officials after converting to Protestantism, or being threatened with arrest if they did not renounce their Protestantism. There are reports that Protestant and Catholic groups continue to say there are legal restrictions and a lack of clarity on relation to the law on operating faith-based medical and educational facilities, which deters them from opening these. There are also reports of Protestant ministers in remote areas having assets seized or premises raided, although it is reported that religious and political issues tend to overlap in this regard. It reports registered Protestant groups experience less government interference than unregistered groups, although some unregistered groups still operate such as in house churches where up to several hundred people can gather, and some may have a certificate of registration for prayer groups, for example for their family, although the situation differs from place to place. Reports are mixed in relation to tolerance from authorities toward evangelism. As was noted at hearing overall, the sources indicate no pattern of official discrimination and harassment against Protestant Christians in cities who belong to a registered church and are not politically active, and that Protestant Christians in cities also reportedly experienced little societal discrimination.

   [1] DFAT, 'DFAT Country Information Report - VIETNAM - 11 January 2022', 11 January 2022, 20220111094403; USDOS '2022 Report on International Religious Freedom: Vietnam', 15 May 2023, 20230518114630.

4. While in more generalised written submissions and brief claims the applicants have referred to Montagnard Christians (indigenous highlander communities), ethnic minorities or tribes in rural areas, religious advocates, leaders, or pastors, these circumstances are not applicable to them. The Applicant Husband indicated his father had studied the bible at home with a small group of 20 which was disallowed at that time, and they have both briefly alluded to this not being allowed, although as was noted at hearing the applicants have not claimed to have engaged in these types of activities in the past or that this personally affected them, and the Applicant Wife said she would not do this as she believed it was illegal. When asked how they practised their faith they said they attended churches in Australia and Vietnam and have not said they attended unregistered churches or that they are politically active, as was noted at hearing. As noted above I accept the applicants are Protestant Christians who practise their faith by regularly attending church and I consider that if they were to return, they would very likely return to Tan An, the capital of Long An, where the Applicant Husband grew up and his father still lives in the family home, and where other family also live. At hearing they said that area was more tolerant of religious minorities than Hanoi. While I am willing to accept the applicants may face some subtle societal discrimination, such as weird looks, or some people voicing views critical of their faith, and that their children how have only infrequently visited Vietnam in the past may not have experienced this and it may be an initial shock to them, I am not satisfied these circumstances amount to serious harm. For the reasons noted above I am also not satisfied that these circumstances amount to ‘significant harm’ as defined for the purposes of s 36(2A). There is not a real risk the applicants would be arbitrarily deprived of their lives, the death penalty, or be subjected to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.

5. At hearing the Applicant Wife said the children would find it difficult in Vietnam because it was a different way of life than in Australia; it would be hard for them to get an education, they spoke Vietnamese but not well, and it would be difficult to find a government school for them. They provided school records for two oldest sons who are currently attending a secondary college in Australia and the youngest appears to be about [age] years of age. The Applicant Husband also said that they had not been back in Vietnam for a number of years now. When putting their migration history to them under s 424AA, I noted the two oldest sons had travelled to Vietnam with them in the past when they returned to visit family in Hanoi and Long An, albeit when they were younger. As was noted at hearing the country information and online reporting[2] notes a strong cultural commitment to education in Vietnam which is free and compulsory up to 14 years of age, and there are thousands of schools in Vietnam, both public and private. While there are costs associated with education it is reportedly very affordable with the government subsidising the bulk of the costs. Secondary public schools are allowed to charge a small tuition fee. At hearing I also noted that the Applicant Husband and Applicant Wife were both well educated, skilled, and had shown themselves to be resourceful and capable in applying for visas and travelling over the years, running a business in Australia for some 10 years, that they were both relatively young, and there was nothing to suggest they could not work if they were to return. They also have family in Tan An which is the capital of Long An and a major city, and where I consider they would very likely return should they return to Vietnam. While the oldest sons have visited Vietnam in the past, I acknowledge all their sons have lived and attended school in Australia, may not speak fluent Vietnamese, and if they were to return would need to adjust to a new school, friends, improve their Vietnamese, and that the applicants may face initial delays in finding schools and securing employment, and that these adjustments may initially be challenging, however based on their profiles, I am not satisfied that these circumstances amount to serious harm, even when taking into account any societal discrimination they may experience as Protestant Christians. For the reasons noted above I am also not satisfied that these circumstances amount to ‘significant harm’ as defined for the purposes of s 36(2A). There is not a real risk the applicants would be arbitrarily deprived of their lives, the death penalty, or be subjected to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.

   [2] DFAT, 'DFAT Country Information Report - VIETNAM - 11 January 2022', 11 January 2022, 20220111094403; Education Destination Asia, ‘School Education System in Vietnam’, (19 September 2023) 

6. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants protection visas.

   Gabrielle Deal
   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.

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   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.

   …