1818015 (Refugee)

1818015 (Refugee) [2022] AATA 1355 (31 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818015
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Justin Meyer
DATE:31 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 March 2022 at 2:16pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – religion – Catholic – lack of free speech – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
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 review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 26 September 2016. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a refugee as defined by s5H(1) of the Act and also not satisfied he was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. On complementary protection criteria, s36(2)(aa) of the Act, she was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there was a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 4 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Vietnam for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his application to the department, the applicant claimed as follows:
·The applicant wanted to leave Vietnam as he and his family do not like the current Vietnamese government. The applicant applied for a student visa to come to Australia and initially he wanted to develop new skills. After being in Australia the applicant appreciated the democratic beliefs and human rights enjoyed by Australian citizens.
·In Vietnam the applicant could see injustice; the government confiscated homes and developed them into tourism places. The applicant claims he has been oppressed and is unable to raise his voice as a Catholic believer.
·The applicant participated often in protests against the government and claims to have been detained for five weeks. The applicant further claims that the police told him he would be summoned to the court for his participation in the protest.
·If the applicant returns to Vietnam he will be arrested at the airport. His family have been protesting and demanding an explanation for the toxic environment in Nghe An. The toxic environment is related to the Formosa chemical spill. The source of income for the applicant’s family is fishing however the fish are now dead.
·The applicant’s family have protested about the situation and have been warned by police that they will be detained if they continue. The applicant fears he will be detained if he returns to Vietnam.
·There is only one government in Vietnam and wherever the applicant goes he will have to provide his details and if he relocates without reason he will be interrogated. If the local authority found out about the applicant’s family he would be returned to his home area to face the same sentence due to his family’s actions.
·The applicant’s family has been classified as a protest group and traitors to the government.
The applicant made no written submission to the Tribunal.
Evaluation in the light of the applicants’ evidence in the hearing
The applicant said that he first came to Australia in February 2013 in order to study. He only studied English for two to three months and he then worked on farms and had other work. I note that he in December 2012, at the age of [age], was granted a [student] Visa.
He has no family in Australia. He finished high school in Vietnam.
His father is a farmer, and the applicant is the last of [number] children.
The applicant’s reasons for coming to Australia were that he did not like the Vietnamese government – people could not speak out, and he was a Catholic. His family had done some research and found that Australia had more freedom and democracy.
The applicant is single and has no children. He is [age] years old.
I asked the applicant to explain as to how people’s inability to speak out affected him. He said that the government took people’s land to build resources. He wanted to speak out but could not. This was over land in [a named] village. He wanted to speak out in 2012 but could not. He added that he wanted to speak out because he was a Catholic. I asked the applicant how this matter was related to Catholicism. He said he did not want government to take his house and land. I asked the applicant if the government was in fact going to do this to him. He said that, no, they would take it from the people. I asked the applicant whether he had any other issues relating to free speech. The applicant said he came to Australia for freedom and equality. I asked the applicant if he had spoken out about Vietnamese issues in Australia. The applicant said he would like to talk about how the government was taking land for tourism. The Tribunal asked if the applicant had commented on this matter. He said that if he had no job - it is hard to find a job and this gives hardship to people. This seemed to the Tribunal’s mind to be an off-point reply to a question of the Tribunal.
The Tribunal discussed commenting online and asked whether the applicant had done so. The applicant replied not yet. The Tribunal asked what stopped the applicant from doing this. The applicant said that he feared that if he did it, he might be arrested.
The Tribunal went on to enquire as to what other things in Vietnam concerned him. He said that the Chinese government had obtained the rights to a special area of Vietnam for 99 years. The applicant confirmed that this was a lease. It was to be used for tourism. He knew about this because he followed the news.
In regard to Vietnam politics and whether he had been to protests, the applicant said he was a Catholic and went to church. He saw police arresting Catholic people. I asked if these were people that he knew. The applicant said “some I know”. I asked the applicant whether he could name somebody. He said he did not know the name. He said they went together as young people. The police interviewed them. Policemen “arrested us because we were protesters” he said. This occurred while he was attending church and he clarified that it took place after church. The Tribunal asked what the police had done to the applicant specifically. He said that they had interviewed him and they detained him for five weeks. He has no record of this. I asked if he was detained in a jail or a police station. He said he was put in a private room and needed to write a statement. He wrote that he did not do the protest. That was enough to get him released, he said.
The applicant added that on another occasion the police had asked him questions. This was in relation to other young people as protesters.
The Tribunal enquired as to how being a Catholic would create difficulties for him. He said Catholics were discriminated against and threatened. I asked if he had ever been discriminated against because of being a Catholic. He said he could not talk to people. I asked what he wanted to talk to them about. The applicant said he wanted freedom and equality and fairness.
The applicant confirmed the Tribunal that he had no issues getting through customs at the airport when he departed Vietnam. He said he had found a service to get to Australia and this had been arranged. He has never been charged accused or arrested of any crime.
The Tribunal discussed the applicant’s churchgoing in Vietnam. He said he usually went to church. He said he went with young groups. He said the church he attended had 300 to 400 people. He went to church in Australia. He estimated that this was monthly and he named a particular church in Melbourne that he attended. This was a Vietnamese speaking church service.
The applicant’s other fears about returning to Vietnam would be that he would be arrested and that he would face harm for associating with someone wanting more freedom.
The Tribunal noted that the applicant had waited approximately three years before applying for protection once he arrived in Australia. The applicant explained that this was because he had no money. I also pointed out that for approximately three years he went without studying even though he had received a student visa. He said that this again was because he had no money, even for rent.
He had help from a friend in filling out the protection application. He has lost contact with the friend. He blamed a lack of money and a lack of knowledge for his late application.
The Tribunal noted that in his written application to the Department he had stated that he had participated in protests.
It was then noted by the Tribunal that he had said in the hearing that he did not participate in protests. The applicant said he went with the younger group and “they arrested us”. The Tribunal put to the applicant that his statement that he participated in protests was in fact wrong. The applicant agreed that this indeed was wrong. The reason for this he said was because he had asked his friend to write the protection application.
The Tribunal asked whether the protection application’s claims were exaggerated. The applicant said that his English was such that he could understand but had trouble writing. He said he did not know that his friend had made this claim they he participated in protests in the written application. He said that his friend had not said it clearly. The applicant said he went with the group. This was on one occasion.
The Tribunal noted that the applicant had said that he had participated in protests. The applicant said that he was scared.
The tribunal noted that in the written application the applicant had written that his family had been protesting. The applicant agreed that this was the case. They had protested against China taking the land compulsorily. He said his family had protested and had been arrested. I asked which family member had been locked up. He said a relative. I asked how they were related and he said it was like a cousin. The person’s name was [deleted]. He only knew one name even though there were many names. This was a person on his father’s side of the family- this was his father’s younger sister. I asked for this person’s name and he could not state the name. He said this occurred in 2012.The Tribunal was unable to discern exactly what the family relation was despite its efforts at clarification. I asked the applicant how he heard about the incident to which he replied from the news. I asked if he had not heard that about the incident from family. The applicant said that, no, it was from the media.
The Tribunal expressed doubt that the applicant could not more readily recall the occasion. The applicant said that the event took place in the Nghe An province. He said he had family there. He said there was an environmental probe. This was to do with the factory called Formosa. I asked what this event had to do with the applicant. He said his relative went to protest. I asked if the applicant himself went to the protest. The applicant said he just watched. I asked if the applicant was there to which the applicant said he was in Australia. Despite efforts to clear up the location and attendees at the protest these uncertainties were left unresolved.
The Tribunal asked why this incident was a problem for the applicant. He said for the last few years this was the most recent problem with authorities. It was hard to find a job. I asked if this was a problem with the authorities. The applicant replied that the family was under pressure. He said the police came and asked questions.
The Tribunal pointed out that his family were farmers and presumably already had work. The applicant said that his family had sold their land. They had borrowed money. They had needed to buy money. They were not successful and there was not enough land for them.
The Tribunal discussed 3.49 to 3.57 of the most recent DFAT Vietnam country report[1].
[1] DFAT Country Information Report Vietnam 11 January 2022
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.49
Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50
Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51
Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52
The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53
Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54
Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55
Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56
Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, DFAT Country Information Report VIETNAM January 2022 19 invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57
It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
The Tribunal asked whether the report was accurate to the applicant’s mind. The applicant said that when he was not yet 18 he went with a group and was arrested. The authority said that he was a protester. Although this was a long time ago he said he was still scared.
The Tribunal also contemplates in its decision these report sections:
3.65
Protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land and land owners allege low levels of compensation, which sometimes leads to protests. A recent prominent example was the January 2020 Dong Tam commune incident in which three police officers and a civilian were killed. The Dong Tam commune protests had been occurring for some years; protesters’ trials concluded in 2020 with some protesters receiving the death penalty and others life in prison for charges that related to the deaths of several police officers. Social media commentary on the issue later led to arrests of, and prison terms for, those commenting, demonstrating the sensitivity of the issue.
3.66
The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
3.67
It is difficult to predict when a protest will escalate or attract Government attention. As with other protests, Government action might depend on the local government authority and its priorities. Overall, DFAT assesses that land and environmental protesters face a moderate risk of official discrimination

The Tribunal went on to discuss 3.13 3.26 and 3.30 and 3.31 from the DFAT report.
RELIGION
3.13
Vietnam is officially an atheist state. Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion. In practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers. The 2020 US Department of State International Religious Freedom report estimates, based on census data, that 14 per cent of Vietnamese have some religious faith, with 6 per cent of the population Catholic and 5 per cent Buddhist. Protestants make up about 1 per cent of the population. Small religions and traditional religious-cultural practice (for example, ancestor veneration) are also practised.
…
3.26
There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.
…
3.30
In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.
3.31
DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.
The applicant said that the communist regime does not treat Catholics equally. He said Catholic people are very scared of the Communist regime. This affected him because he is a Catholic. The Tribunal noted though that he might be able to continue without being disturbed. The Tribunal put that if the country information is correct ordinary Catholic worshippers are left undisturbed on the whole. The applicant said that he got mixed up and under the Communist system he was a protester in the eyes of the police.
The applicant added that in recently received information police have visited the family home suspecting he was in a group against the Vietnam government. The applicant said his brother had told him this.
The Tribunal asked when this had taken place to which the applicant said a few years ago. He said it was 2016 the police came to the house and said that he was a protester.
Findings
The Tribunal finds that the applicant is [age] years and is a practising Catholic.
The Tribunal finds that he has criticisms of the Vietnamese government.
The Tribunal has a number of credibility concerns with the applicant’s evidence which it has discussed with the applicant in detail.
The Tribunal was concerned at the applicant’s shifting evidence about incidents of harm which he claimed.
The applicant gave a confused account as to whether he had been to protests or not. Although he claimed in his visa application that he had often participated in protests against the government, he changed his evidence to say that he had seen the police arresting Catholic people. He said he was attending church and clarified that arrests and or protests had taken place after church. This is a considerably different situation to actually going to a protest and protesting.
The applicant was asked why there was a difference between what he was claiming in the hearing and what he had claimed in writing, and the applicant placed the blame on the person who completed his application for him. However, the Tribunal notes that the applicant could not recall the name of the individual who completed his visa application for him or provide information about the person. It is unclear to the Tribunal as to why quite specific written claims were made about attending numerous protests, yet these were contradicted by the applicant’s oral evidence. The applicant’s testimony in the hearing focused upon his seeing a protest after leaving a church service. In all the applicant’s lack of recollection as to who completed the application form for him, the clear claim that he had attended numerous protests, and the apparent contradiction that he had never been a protester causes so many doubts in the Tribunal’s mind that it positively disbelieves the applicant’s account of having ever attended a protest.
The applicant’s oral evidence was that he was too scared to protest about the political and or religious matters that he claimed to be concerned about. Yet upon further questioning the applicant only gave vague and general answers about the political situation in Vietnam. He had some knowledge of some issues, but could barely detail his concerns. He seemed only generally aware of the Formosa issue for example. When asked whether he had any other concerns about free speech he gave generalised accounts of how he believed in freedom and equality and had come to Australia for this. I do not accept his evidence that his lack of activity was because of fear of being arrested if he was returned to Vietnam for this reason. The passion and detail that he claims to have is not matched by a knowledge of facts and dates. While he has a generalised concern about the Chinese government acquiring special land zoned for 99 years for tourism, this is a fairly well-known news item in Vietnam that scores of people would be aware of.
The Tribunal also does not accept that the applicant saw the police arresting Catholic people that he knew. He said that some people that he knew were arrested in front of him but when asked to name somebody he said he did not know the name. How one can know people being arrested and yet not know their name was never explained, despite the Tribunal is urging. The Tribunal notes that these events are claimed to have occurred several years ago, yet life altering situations such as these typically create a deeper impression on an individual who can readily recall details such as names. The Tribunal does not accept that the applicant saw people arresting Catholic people or that he knows any such people. The Tribunal does not accept that he could be one of these people potentially.
The Tribunal also has a concern about the delay the applicant had in making a protection visa application. The applicant spoke confidently, has been employed, and has a secondary education and I have no reason to believe that he lacked the wherewithal to investigate his options in Australia if he genuinely feared for his safety. The Tribunal does not accept the lack of money prevented him from finding out about seeking protection in Australia, as the applicant has been able to do a number of other things in Australia such as study and work without apparent issues. The Tribunal considers the applicant’s long gap of unlawfulness to impact negatively upon his claims and credibility and adds to the Tribunal’s impression of invented incidents and accounts of the harm he claims to have experienced.
The Tribunal does not accept that the applicant was placed in detention at any point. He could not identify whether he was placed in a jail or a police station and instead said it was in a private room in which he needed to provide a statement. I do not accept that the applicant could be in a private room for five weeks for any length of time that he claimed. That is because there was no detail of what this private room was, where it was, who was holding him and the purpose of the claimed detention, despite my questioning. He had no record of any such statement or detention in the Tribunal finds that this did not occur. This detracts further from any claims he makes about having a well-founded fear of persecution or a real chance of significant harm for reasons of his religion or political views.
The Tribunal also notes that the applicant claimed to have no issues exiting Vietnam, and this adds no weight to his being of interest to authorities.
The applicant confirmed that he has never been charged accused or convicted of any crime.
While the Tribunal accepts that while the applicant is a Catholic and attends mass on a reasonably regular basis, the Tribunal has identified no reason from the country information to find that he is politically active. The Tribunal concludes that his risk of harassment is low or negligible as a result of his religious activities and his private political views to the extent that he has them.
I also do not accept that the applicant’s family member or members have been protesting. The applicant struggled to identify which member or members of his wider family had protested or had experienced issues with the authorities. He struggled to identify the family relationship and names of an individual or individuals claimed. For the fear that he claims to have it is incongruous that he struggles to remember names or full names and relationships of such individuals, as they would be impressed upon the memory all things being equal. There is nothing before me to suggest that the applicant’s memory is faulty. I do not accept that the applicant or his family members are protesters or will protest in the future, nor that they are or will be politically active individuals.
The Tribunal does not accept that the applicant will find it hard to find a job for any reason. The Tribunal does not accept that an environmental protest to do with the Formosa factory was watched by the applicant, as he admitted that he was not in the country at the time and in fact was in Australia. This further detracts from his claim of being a protester or potential protester. Thus I do not accept that the applicant has had visits from the police or that they came to his house in connection with protests or political activity or to do with being a Catholic. This was a very clouded account of police visit subsequent to the applicant’s departure and the inability to recall details on what would be a matter of creating a large impression on an individual was inconsistent with a genuine claim.
The prospect of there being a well-founded fear of persecution is nothing more than remote.
These conclusions are drawn even as Tribunal expressly makes no finding or assumption that the applicant needs to, could, should or would relocate, or modify his behaviour, upon return.
The Tribunal can discern no other potential source of harm for the applicant.
Does the applicant meet the complementary protection criteria?
The Tribunal turns now to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act: s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The courts have reasoned that the ‘real risk’ test aligns with the ‘real chance’ test.
The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
As the Tribunal has found against his claims of potential harm it does not accept that substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm.
The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
The Tribunal is also not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life.
The Tribunal can discern no other potential source of harm for the applicant.
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 s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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 1355

31 March 2022

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