1815803 (Refugee)

1815803 (Refugee) [2023] AATA 461 (11 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815803
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Wayne Pennell
DATE:11 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 January 2023 at 9:59am
CATCHWORDS
REFUGEE – Protection visa – Vietnam – imputed political profile – delay in applying for protection in Australia – applicant failed to attend tribunal hearing – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (the delegate) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 3 May 2018.
The applicant who claims to be a citizen of Vietnam, applied for a protection visa.[2] The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[5] The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there would be a real risk of him suffering significant harm and he was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]
[2]The applicant’s application was received by the Department of Home Affairs on 4 September 2017.
[3]The delegate’s refusal was made on 3 May 2018.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicant filed an application with the Tribunal to review the delegate’s decision and accompanying that application was a copy of the delegate’s decision.[7] He was not represented in relation to the review and at a subsequent time, he was advised that the Tribunal had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[8]
[7]The applicant’s review application was filed with the Tribunal on 30 May 2018.
[8]The Tribunal advised the applicant on 8 December 2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9] At a subsequent time, a reminder email was forwarded to the applicant advising him of the review hearing scheduled to be held on 10 January 2023. The applicant did not respond to the hearing invitation, and nor has he responded to the reminder email. The Tribunal particularly notes that he has not provided any evidence, material or examples to support the protection claims outlined in his application.
[9]Migration Act 1958 (Cth), s 425. The Tribunal’s review hearing was listed for 10 January 2023.
On the day of the review hearing, the applicant did not appear before the Tribunal at the scheduled time and place. Having reviewed the Tribunal’s file, the Tribunal is satisfied that the applicant was properly invited to the review hearing in accordance with the invitation sent by email.[10] No satisfactory reason for his non-appearance has been given.
[10]Migration Act 1958 (Cth), s 441A(5).
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). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[11] 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.
[11]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.[12]
[12]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.[13] 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.[14]
[13]Migration Act1958 (Cth), s 5H(1)(a).
[14]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.[15] 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.[16]
[15]Migration Act 1958 (Cth), s 5J(1).
[16]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[17] 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’).[18] 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.[19]
[17]Migration Act 1958 (Cth), s 36(2)(a).
[18]Migration Act 1958 (Cth), s 36(2)(aa).
[19]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 inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[20]
[20]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
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.[21]
[21]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a Vietnamese citizen and provided a copy of his passport to authenticate this claim.[22] 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 the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[23]
[22]The applicant’s passport was issued in Vietnam on 7 June 2013.
[23]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 he is not excluded from Australia’s protection obligations.[24]
[24]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[25] 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.
[25]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF THE APPLICANT’S CASE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[26]
[26]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing the claims.[27] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[28]
[27]Migration Act 1958 (Cth), s 5AAA.
[28]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169 – 170.
APPLICANT’S CLAIMS
On 12 December 2013, the applicant was granted a higher education (‘student’) visa. He arrived in Australia on [date] December 2013. After living in Australia for almost four years, he applied for a protection visa.
The applicant claimed that he did not plan to come to Australia for protection, but more so, it was so that he could study and build a better future for himself and work in Australia. He claimed that during the time he has been in Australia, he gained access to much more information on the internet about the communist Vietnamese government. This caused him to have a negative view about the Vietnamese government and he has discovered that the Vietnamese government is not what he thought. He now knows that there is no freedom of speech and no human rights for the Vietnamese citizens.
The applicant claimed that he told his father about his opinion of the communist Vietnamese government. His father got angry at him and told him not to come back to Vietnam because he (the applicant) would be considered as a reactionary. He claimed that his father does not care about him and does not want the applicant to return to Vietnam. He added that his mother passed away a long time ago.
The applicant also claimed that it is not easy for a person to oppose their own government and country. However, the communist Vietnamese government has a complete disregard for the fundamentals of human rights, it is corrupt, and it lacks concern for the wellbeing and the standard of living of the citizens. Because of those features, he does not want to go back to Vietnam as he is very disappointed about the Vietnamese government’s blatant neglect of the Vietnamese citizens.
When explaining what he thinks will happen to him if he returns to Vietnam, the applicant claimed that when he applied for a protection visa, he did so because he had a very strong fear of returning to Vietnam. He is now afraid of living in Vietnam because the communist Vietnamese government generally does not have any value for human rights. He claimed that many innocent people have died in police stations after being arrested by the police. He also claimed that because he now opposes the communist Vietnamese government, the government will harm him. This causes him concern about his own safety, and he has no protection from his family as his father does not want him back in Vietnam.
The applicant’s explanation as to why he would be harmed or mistreated if he returned to Vietnam was that unlike Australia, Vietnam does not value a citizen’s human rights. He said that the communist Vietnamese government is very dictatorial, and he worries that because there are many people being mistreated and persecuted by the communist Vietnamese government, he would be placed in prison and persecuted because of the views he has about the government.
When explaining why the authorities could not, or would not, protect him in Vietnam, the applicant claimed that he does not think the authorities of Vietnam can and will protect him. He claimed that the Vietnamese government never protects anyone who opposes the government’s activities and is against their regime. He claimed that the Vietnamese government considers people who criticise the government as reactionary and not someone who obeys the law. If he goes back to Vietnam, he will have no protection and no person can protect him from the government’s harm.
When discussing why he could not relocate within Vietnam to be protected, the applicant claimed that he does not think he can live in Vietnam. He said that he came to Australia when he was aged [age] and he now thinks of Australia as his home. Because his mother passed away and his father does not want me to come back to Vietnam, the applicant does not think that he can live in Vietnam. He claimed that he would be unable to find employment in Vietnam because he has not been back to Vietnam for a long time. He wishes to remain in Australia as it is much safer, and he can have a better future here in Australia.
The Tribunal identifies and finds that the applicant has provided no evidence to validate or corroborate any of the claims that he has made.
Delay in lodging an application for protection
The Tribunal observes that the applicant’s application for a protection visa was made over three years after he arrived in Australia on a student visa. The Tribunal is aware that he made three applications for a protection visa, the first two were declared invalid. His third application, which was lodged with the Department on 4 September 2017, is the application subject to these proceedings. He has provided no explanation for the delay in the making of his application.
In respect to any consideration about the delay between the applicant’s arrival in Australia and his application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[29] and the Tribunal particularly notes that the applicant has provided no evidence or offered any explanation as to the extraordinary delay in making his application.
[29] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
The Tribunal has considered the applicant’s delay in applying for protection in Australia and concludes that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he was to return to Vietnam. The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.
DISCUSSION
The Tribunal observes the applicant has not provided a level of detail or specificity within the claims made in his application necessary to satisfactorily establish the relevant facts of the claims made. The Tribunal also observes that notwithstanding he received an unfavourable decision from the delegate, he chose not to provide any evidence to the Tribunal or give oral evidence and present arguments at a review hearing.
The Tribunal is mindful of the principle that the mere fact the applicant claims to have a well-founded fear of persecution for a particular reason or reasons, does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reasons claimed. Similarly, simply because he claims that he will face a real risk of significant harm should he return to Vietnam does not establish that such a risk exists or that the harm feared amounts to significant harm.
Noting that the applicant primarily relies upon the assertions within his application as a basis for a protection visa, it still remains his responsibility to satisfy the Tribunal that all of the statutory elements are made out. The Tribunal is not required to make the applicant’s case for him, and it is his responsibility to specify all the particulars of his claims that he is a person in respect of whom Australia has protection obligations. He should also provide sufficient evidence to establish the claim or claims. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of a claim or to establish or assist in establishing the claim.[30] Nor is the Tribunal required to accept uncritically all the allegations made by the applicant.[31]
[30]Migration Act 1958 (Cth), s 5AAA.
[31]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169 – 170.
Apart from having at its disposal the delegate’s decision record which the applicant provided to the Tribunal, the Tribunal is aware of the applicant’s travel and visa records held by the Department. Had the applicant presented himself at the scheduled review hearing, the Tribunal would have outlined those travel details to him and provided him with an opportunity to respond.[32]
[32]Migration Act 1958 (Cth), s 424AA.

Already identified in these reasons was the Department granting the applicant a student visa on 12 December 2013 and it was due to expire on 4 April 2016. The applicant subsequently arrived in Australia pursuant to that visa on [date] December 2013. Since then, the applicant has made three applications for a protection visa.
Significant time passed until the applicant initially made an application for a protection visa (‘first application’) on 16 March 2017. By that time, his bridging had expired on 4 April 2016, and he was an unlawful non-citizen for almost 12 months. Subsequently, the Department declared that his first application was invalid.[33]
[33]Delegate’s decision record dated 3 May 2018, page 1.
The applicant was then issued with another bridging visa on 24 March 2017, which was due to expire on 17 May 2017. The applicant’s second application for a protection visa was lodged with the Department on 12 April 2017. Similar to the first application, his second application was also declared to be invalid. Several months later, on 4 September 2017, he made his third application for a protection visa. That third application is the subject to these proceedings.[34]
[34]Delegate’s decision record dated 3 May 2018, page 1.
With the expiry of his bridging visa occurring on 17 May 2017, it seems that the applicant was again an unlawful non-citizen until he was issued with another bridging visa on 31 October 2017.
As already identified in these reasons, the delegate made a decision to refuse the applicant’s application on the basis that if he returned to Vietnam, he was not at risk on account of his imputed political opinion or for any other reason; and nor was there a real chance that he would suffer persecution for reasons related to his imputed political opinion.[35]
Conditions for returnees to Vietnam
[35]Delegate’s decision record dated 3 May 2018, page 4.
In regard to the circumstances in Vietnam relating to the return of the applicant as a failed asylum seeker, the country information within the DFAT report suggests that Vietnamese authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. The DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[36]
[36]DFAT Country Information Report for Vietnam dated 11 January 2022, page 33, paragraph 5.31.
The DFAT is not aware of cases of returnees being denied citizenship. Being a failed asylum seeker in Vietnam is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades and it is very common and even encouraged by the Vietnamese government.[37]
[37]DFAT Country Information Report for Vietnam dated 11 January 2022, page 33, paragraph 5.34.
When applying the above considerations in respect to the applicant’s case, the Tribunal does not accept that the evidence supports any hypotheses of him facing any real risk of significant harm for reasons of his return to Vietnam as a failed asylum seeker.
Refugee findings
The Tribunal carefully considered the applicant’s claims that if he returned to Vietnam, he will be persecuted because of an imputed political profile arising from him expressing a view contrary to the policies of the communist Vietnamese government, and his father not wanting him to return to Vietnam because of the views he expressed.
The Tribunal has also carefully considered the applicant’s claims in respect to the alleged imputed political profile, and it is the Tribunal’s findings that there is no basis for this claim. The Tribunal also finds that his claims are vague, weak and tenuous and they are not accepted on the basis that there is no tangible or probative evidence provided to support the claims.
For completeness, having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s application, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm at the hands of the Vietnamese government or the police authorities because of any of the alleged claims.
The Tribunal also finds that based on the facts, features and circumstances of the applicant’s case, he does not have an imputed public profile of a person of interest within Vietnam because of any political views he allegedly expressed. It is also the Tribunal’s findings that upon his return to Vietnam, the applicant is not likely to be persecuted or imprisoned for any of the claims he made; and he does not face a real chance of serious harm because of his departure from Vietnam and having sought protection within Australia.
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 him 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,[38] the Tribunal has considered the alternative criterion.[39] 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.[40]
[38]Migration Act 1958 (Cth), s 36(2)(a).
[39]Migration Act 1958 (Cth), s 36(2)(aa).
[40]Migration Act 1958 (Cth), s 36(2A).
Having given careful consideration to the applicant’s application, the Tribunal finds that there is no evidence that he has expressed any political view against the communist Vietnamese government or undertaken any political activities in Australia which would come to the attention of the Vietnamese authorities or which has elevated his profile to the extent that he could be considered by the Vietnamese authorities to be a person of interest, active organiser or a dissident if he returned to Vietnam.
Because of the findings already outlined, 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.[41]
[41]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all the applicant’s claims, individually and cumulatively, as made out in his application, the Tribunal does not accept that if he returned to Vietnam now or in the reasonably foreseeable future, he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; nor will he be subjected to degrading treatment or punishment.
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 he 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 criterion
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 he 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) based on 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 (Cth)
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 461

11 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction