1822604 (Refugee)

1822604 (Refugee) [2024] AATA 1809 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1822604

COUNTRY OF REFERENCE: Vietnam
MEMBER:Catherine Wall
DATE:26 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 March 2024 at 11:06am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – opposition to the Communist government – particular social group – returning asylum seeker – attacks on home and church buildings – bullying by non-Christians – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old citizen of Vietnam. He arrived in Australia [in] December 2013 and applied for the visa on 7 February 2018. The applicant stated in his visa application that he left Vietnam because he cannot practise his Catholic faith freely and he is opposed to communism.
The delegate refused to grant the visa as they were not satisfied that the applicant met the criteria for a protection visa. The delegate found that the applicant waited nearly three years after arrival in Australia to apply for protection and that this delay cast doubt on the truthfulness of his claims. The delegate found that, while there are restrictions on religious practise in Vietnam, there is no indication that Catholics are systematically targeted by the Vietnamese authorities. The delegate also found that the applicant was able to obtain a passport and depart the country, therefore any political protest he and his family engaged in has not given him a profile with the authorities. The applicant was not invited to an interview with the department. He applied for review of that decision on 3 August 2018.
On 5 March 2024 the Tribunal invited the applicant to a hearing on 7 May 2024. On 8 March 2024 the Tribunal received advice from the applicant’s representative that they were no longer acting for the applicant. A hearing response signed by the applicant was attached to that correspondence. The applicant stated that he would not participate in the hearing and he consents to the Tribunal making a decision on the papers without taking further steps to allow him to appear. However the applicant also responded yes to the question about whether he intends to rely on documents at the hearing.
On 13 March 2024 the Tribunal wrote to the applicant, referring to his hearing response indicating that he would not participate in the scheduled hearing. The Tribunal advised that, if it did not receive any further advice from the applicant within 7 days of receipt of the letter, the hearing listed for 7 May 2024 would be cancelled and a decision will be made on the papers.
On 14 March 2024 the Tribunal received an ‘empty’ email from the applicant. The Tribunal phoned the applicant on 14 March 2024 and 15 March 2024 to ask about the email. The applicant returned the call on 15 March 2024 and advised that the email was sent in error.
The Tribunal attempted to call the applicant on 20 March 2024 to confirm that he consents to the Tribunal making a decision on the papers. He did not return the phone call and did not respond to the correspondence from the Tribunal within 7 days.
On 22 March 2024 the Tribunal sent a letter to the applicant advising that the scheduled hearing had been cancelled and the Tribunal would make a decision on the information and evidence before it. On that same day the Tribunal received correspondence from the applicant, sent by registered mail, confirming his request that the Tribunal make a decision on the papers and attaching a submission.
The Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it under s 425(2)(b) of Act. This matter has therefore been determined on the evidence available to the Tribunal.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
I was born in Nghe An Province in Vietnam on [date]. In Vietnam I lived all my life in the above village. I am a single man and my family still live in Vietnam. I am the [position in family]. I came to Australia [in] December 2013 on a student visa and studied in Queensland for 5 months. I then moved to Victoria and I have been illegal since that time. I am now applying for a Protection Visa based on the grounds that I fear persecution because of my religion and political opinion.
That my family and I were practising Catholics in Vietnam, which is a Communist country. There are a number of churches in the whole of Vietnam, but it is very common for worshippers to be harassed, threatened and abused by non-Catholics. They do not understand why we believe in God and therefore I believe that my freedom to practice my religion freely is greatly affected. We cannot rely on the government authorities to protect us, as they do nothing to stop the bullying tactics employed by these non-Christians. I say that the government authorities encourage this persecution of Christians.
There is a church near where I live and this church has been damaged on a number of occasions by non believers. However, when we tried to rebuild the damage, we came in for harassment from these non believers who would attack us physically and verbally. One of the worst times of the year was Christmas time when the church celebrated Christmas day and had a lot of decorations around the church. Often these decorations would be vandalised and when they were replaced, they would be damaged again.
This church has been there for a number of years and is called [name] and we often have days where we will give our time to clean the church and I have been present when we have been harassed and threatened by non-believers. The Church often has activities to encourage people to come to church and to encourage people to build a community and this has caused problems with the non-believers.
That because my family and I were well known in our area as practising Christians, we often would come in for bad treatment by these non-believers. My home has been attacked a number of times and the last time this happened, the police came and told us that for our own safety we should stop practising our religion. We were also told they would arrest us. That when this happened, we wondered whether we should stop attending the church services, but I attended and my parents followed my actions. We also practised our religion at home. We often would have prayer meetings at home, which would be attended by other practising Catholics.
That when the opportunity came for me to leave Vietnam and come to Australia, I took the chance, as I say living in Vietnam prevented me from practising my religion freely without any interference from government authorities or non-believers. That since coming to Australia in December 2013, I have been practising my religion. I attend church every Sunday and take part in a number of church activities. That when living in Queensland, I would attend the local Catholic church, but the services was in English and so it was hard to follow the service. However since living in Victoria, I attend the [Church 1]. The service is in the Vietnamese language [between specified hours] and that is when I attend. I am able to attend the service without any problems or threats or harassment as I am free to practise my religion.
That my parents have always been anti-communist, even though they have lived in the country all of their lives. One of the main reason that they are anti Communist, is because of their religion. That is Catholicism and Communism do not go together. I say that the government authorities and the non-believers knew this and that is why we is why we as a family came in for a lot of harassment and were treated differently. That my parents were farmers and their main crop was [specified]. I say that we were discriminated by the Vietnamese authorities, who refused to provide us with machinery, which would have made our farming practices a lot easier. Instead we were forced to do our farming by hand. I say that this affected our income and we were discriminated against because of our religion.
My father and mother often expressed their anger at the authorities and challenged their decisions. This was another reason, why my parents encouraged me to leave Vietnam, as they feared further retaliation from the government authorities for not following the Communist orders.
There is a real risk that I will suffer significant harm. I will face significant harm from the Vietnamese government authorities because of my religion, namely a practising Catholic and subsequent imputed political opinion that I am anti Communist because of the fact that I was and am a practicing Catholic. I say that there are substantial grounds for believing that, as a necessary and foreseeable consequence of me being removed from Australia and returned to Vietnam, there is a real risk that I will suffer significant harm.
The applicant provided country information from a number of sources to support his claims. That information is at Attachment A.
On 22 March 2024 the applicant submitted a statement dated 18 March 2024 in support of his claims. Some of the information repeats that contained in the visa application. Additional information is summarised below:
The delegate found that the applicant was not of interest to the authorities as he was able to leave the country. In response, he argues that country information states that the Vietnamese government suppresses political expression and protest, that the government prevents the exit and entry of individuals considered to be anti-government and that activists are likely to attract adverse attention from authorities.
Various reports referred to describe the state control of print and broadcast media, the arrest and assault of journalists and bloggers and general restrictions on freedom of speech.
Vietnam currently holds more than 160 people in prison for peacefully exercising their basic civil and political rights and during the first 9 months of 2022 the courts convicted at least 27 people for voicing criticism of the government.
All religious groups and most clergy are required to join a party-controlled supervisory body and obtain permission for most activities. The 2016 Law On Belief and Religion reinforce authorities’ power to control religious activity. Unregistered and unrecognised religious groups face routine harassment. If returned to Vietnam he will be unable to practise his religion as the government is determined to stop the growth or religions such as Christianity.
He will be a returned asylum seeker as therefore will be questioned at the airport and detained by the government authorities.
The applicant includes sections of the DFAT report relating to the questioning of returnees, including that DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam and that DFAT is not aware of any cases in which returnees from Australia have been held overnight for the purpose of questioning.
The applicant also refers to sections of the DFAT report relating to restrictions on religions. The report finds that different people of different religions in different areas will have different experiences, depending on local authorities, and those in cities are less likely to experience official interference. It further states that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. The Catholic Church is by definition, united, and can deal with the government at a national level across Vietnam. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered.
DFAT is aware of reports by activists of assault used to extract confessions and of poor prison conditions that may amount to torture. Police can detain an individual without warrant for up to 72 hours in ‘urgent circumstances’ and a prosecutor must approve of the arrest within 12 hours.
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.
ASSESSMENT
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[1]
[1] (1999) 197 CLR 510.
The issue in this case is whether there is a real chance the applicant will suffer persecution on return to Vietnam or, if not, whether there is a real risk he will suffer significant harm if he is removed from Australia to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has provided insufficient information regarding his claims for protection. He claims that his family has been bullied and attacked by non-Christians because they are Catholic. He has not advised whether his family’s church was registered with the authorities. He has not stated the identity of the ‘non-Christians’ who attacked them, the date and place of the attacks and whether he or his family members were injured. He claims that the police told his family to stop practising their religion in order to prevent attacks however there are no details about when this happened and whether there were any repercussions from the police when they continued to practise. The applicant has been in Australia for over 6 years. He said that he regularly attends church in Melbourne however he has provided no other information about his current circumstances in Australia, or his family’s current circumstances in Vietnam.
The applicant has provided country information which confirms that religious activities are restricted in Vietnam as well as references to specific violations of human rights by Vietnamese authorities. He has also provided country information which reports that Catholics are generally able to practise freely at registered churches and that relationships between the Catholic church and the government are generally cordial. This information contradicts his claim that he cannot practise his religion freely in Vietnam. There is insufficient detail in the applicant’s written evidence regarding the exact nature of the harm he fears, whether the harm he fears amount to serious harm and if there is a real chance or a real risk that he will experience serious harm or significant harm as a result of his Catholic faith if removed to Vietnam now or in the foreseeable future.
The applicant claims that the Vietnamese authorities refused to provide his family, who are farmers, with machinery to assist their work. He claims that this refusal was because of his parent’s anti-communist views. He referred to his parents challenging the authorities however he has not explained how they challenged the authorities, when this happened, and how the authorities responded. The believes that he is at risk from imputed political opinion as an anti-communist because he is Catholic. While country information advises that anti-communist and anti-government activists are subject to harassment, assault and imprisonment, the applicant has not specified what activities he has engaged in, other than being Catholic, that would bring him to the attention of the authorities.
There is simply not enough information for me to accept the applicant’s claim that there is a real chance or a real risk he will face serious harm or significant harm because of his profile as anti-Communist if he returns to Vietnam.
The applicant claims that as a returned asylum seeker, he will be questioned and detained by Vietnamese authorities at the airport upon return. He has submitted information from DFAT which states that authorities occasionally question returnees from Australia upon their arrival in Vietnam however DFAT is not aware of any cases in which returnees from Australia have been held overnight for the purpose of questioning. I accept that the applicant may be questioned at the airport upon return to Vietnam however he has not provided evidence to indicate that such questioning amounts to serious harm and if there is a real chance or a real risk that he will experience serious harm or significant harm as a result of being a returned asylum seeker.

The written evidence presented by the applicant is not sufficiently detailed to enable me to be satisfied that he faces a real chance of persecution in Vietnam or that 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.
I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that 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 reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
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.
Catherine Wall
Member

Attachment A
Country information submitted by applicant in support of his claims.
In its 2004 report on Human t<1ghts Practices, the US.State Department characterized Vietnam's human rights record as "poor" and cited the continuation of "serious abuses." According to the report, the government has imposed restrictions on freedom of speech, freedom of the press, freedom of assembly, and freedom of association. Recent US reports maintain the same observations and international human rights organizations that share these views include Human Rights Watch and the Unrepresented Nations and Peoples Organization. The United Nations has highlighted religious persecution.
In 2009, the European Parliament expressed concern about "the growing climate of intolerance in Vietnam towards human rights defenders and members of officially unrecognized religious communities." It called on the government to end repression against freedom of expression, belief, and assembly, and to release its "political prisoners".
Freedom of expression remains a problem as the Vietnamese authorities continue to use tough national security laws to punish critics of the regime. The official media remained tightly controlled by government censorship and obstruction. Restrictions on the freedom to assemble remain a problem in Vietnam. There is an effort of the government to delay issuing a law for legalizing demonstration/strike although demonstration is legal as written in Vietnam's Constitution. At present, Vietnam continues to hold more than 160 political prisoners, who have committed no "crimes" - other than to peaceably voice their complaints that their government is seen as becoming increasingly corrupt and unaccountable.
Epoch Times, dated May 20, 2013 and headed" Pressure mounting on Vietnam to improve human rights" states:
WASHNGTON-ln 1994, President Bill Clinton declared May 11 Vietnam Human Rights Day in the hope it would ease political, civil, and religious repression in Vietnam. Nearly two decades later, the rights picture remains grim, however, motivating members of the United States Congress and human rights groups to ramp up pressure on Vietnamese authorities to change. “We are here in the United States Congress to send a message to the government, particularly the communist party in Vietnam, that they have to respect the fundamental human rights of Vietnamese people, particularly when it comes to religious liberties and the rule of law," said Rep. John Cornyn (R-Texas), host and keynote speaker at a Vietnam rights day event on Capitol Hill, May 9.
Although economic reforms have placed Vietnam among the world's fastest growing economies, affording it membership in the World Trade Organization in 2007, the Socialist Republic of Vietnam joins China, Cuba, and Laos as one of four remaining single-party socialist states ruled by communist ideology.
According to Human Rights Watch (HRW}, the number of arrests and convictions of dissidents, including religious leaders, bloggers, and politically active citizens, has increased annually over the last 4 years, despite economic growth. "Alarmingly, another 40 people were convicted in political trials in just the first six weeks of 2013, matching the total for 2012," HRW's John Sitton reported at a congressional hearing last month.
Freedom of Speech Stifled. With the advent of social media, Vietnamese authorities have clamped down particularly hard on bloggers and journalists.
Amnesty International reported the arrest last year of 14 democracy advocates accused of overthrowing the government, five of whom were bloggers who had written about freedom of expression. "I have done nothing contrary to my conscience" said blogger Dang Xuan Dieu at the time of his sentencing. Vietnamese authorities were "trampling on the eternal good morals of the Vietnamese nation," he said, according to a report on Amnesty's website.
Rupert Abbott, a specialist on Vietnam and Amnesty's representative at the May 9 event, referred to the arrests last week of a group of bloggers and activists who had endeavoured to hold picnics in public parks to talk about human rights in Vietnam. They were beaten, interrogated, and arrested by police and hired thugs for their trouble. "Vietnam continues to be one of the worst violators of freedom of expression in the world," he said.
Addressing the Vietnamese community at the May 9 event, Daniel Baer, Deputy Assistant Secretary for Democracy, Human Rights, and Labour, listed a litany of rights concerns in Vietnam identified in the U.S. Country Reports on Human Rights Practices 2012. Vietnam's repressive tactics, particularly in regards to freedom of speech, would ultimately hold the country back, he said. Baer was prevented from meeting a democracy activist last month in a bizarre tactic involving little old ladies who were recruited to block the road leading to the dissident's house. Baer was in Hanoi for the annual U.S. Vietnam Human Rights Dialogue and was prevented from meeting another activist who was detained in a police station until he had departed. "What could have been a platform for solid movement," he said, "has now been marred by behaviour that calls into question the sincerity of any commitments they might make."
Human Rights Watch, March 23, 2010. In 2009, Vietnam intensified its suppression of dissent in an effort to bolster the authority of the Communist Party. Authorities arrested dozens of peaceful democracy advocates, independent religious activists, human rights defenders, and online critics, using vaguely-worded national security laws such as spreading "anti-government propaganda" or "abusing democratic freedoms." The courts convicted at least 20 political or religious prisoners, including five people sentenced in October whom the United Nations Working Group on Arbitrary Detention had determined the previous month to be arbitrarily detained. People imprisoned in Vietnam for the exercise of fundamental rights number more than 400. The government tightened its controls on internet use, blogging, and independent research, and banned dissemination and publication of content critical of the government. Religious freedom continued to deteriorate, with the government targeting religious leaders and their followers who advocated for civil rights, religious freedom, and equitable resolution of land disputes. In a country like Vietnam, where the government bans independent human rights organizations and rejects visits by international human rights groups and UN human rights experts there is no human rights infrastructure beyond the networks that human rights defenders create among themselves. When these defenders' organizing activities are uncovered by the authorities, they are invariably considered a threat and many times, deemed illegal by the government. The government forbids the operation of free media, outlaws independent human rights organizations, and prevents the formation of trade unions outside the control of the government-directed Vietnam General Confederation of Labour (VGCL).
The Party is not shy in defending its repression of human rights to a domestic audience. The Communist Party of Vietnam's (CPV) general secretary, Nang Due Manh, said on February 2, 2010, that "We struggle against all the ... hostile forces by preventing them from profiting from ... democracy, human rights, multi-partyism and pluralism to sabotage the Vietnamese revolution." However, in its May 2009 Universal Periodic Review (UPR) at the United Nations Human Rights Council, the government asserted that it has no "so-called prisoners of conscience," that no one is arrested for criticizing the government, but only for violating Vietnam's laws; and that its national security laws "conform to international law." The government rejected 45 recommendations from other governments at the UPR, including ones calling on Vietnam to allow individuals and groups to promote human rights. Freedom House -Vietnam/ Freedom in the world: Vietnam
2016
Repression of Freedom of Religion
The government restricts religious practice through legislation, onerous registration requirements on "unofficial" religious groups, harassment, and surveillance. Religious groups are required to gain approval from and register with the government, as well as operate under government controlled management boards. While authorities allow many government affiliated churches and pagodas to hold worship services, they ban religious activities they deem contrary to the "national interest," "public order," or "national great unity." Authorities frequently interfere with religious activities of unrecognized branches of the Cao Dai church, the Hoa Hao Buddhist church, independent Protestant and Catholic house churches in the central highlands and elsewhere, Khmer Krom Buddhist temples, and the Unified Buddhist Church of Vietnam. . In January 2015, the UN Special Rapporteur on Freedom of Religion or Belief Heiner Bielefeldt issued a report identifying "serious problems" in Vietnam's approach to religion, notably "legal provisions that tend to give broad leeway to regulate, limit, restrict or forbid the exercise of freedom of religion or belief."
In November 2015, the ministry of interior submitted a new draft "Law on Belief and Religion" to the National Assembly. The new draft maintains mechanisms allowing authorities to persecute religious groups they dislike. For example, clause 5 of article 6 prohibits "the abuse of freedom of religion and beliefs to... sow division among the national great unity, harm state defense, national security, public order and social morale."
"National great unity," "national security," and "social morale" are vague terms and have been arbitrarily used by the authorities to punish hundreds of peaceful bloggers and activists. The draft law requires religious groups to "have been granted a registration for religious activities by authoritative state office and have carried out stable religious activities for 10 years" before it can apply to be recognized by the state (article 18). The new draft interferes with the internal affairs of religious groups, such as the requirement for religious dignitaries to be appointed (including one must "have the spirit of national unity and harmony" - article 32) or the requirement for religious education within religious institutions to include "Vietnamese history and Vietnamese law as the core subjects" (article 22). Like current regulations that curb the freedom of religion and belief, the draft requires religious groups to register with the government for everything they do, including annual activities, festivals, conferences, conventions, appointments, etc., and stipulates that authoritative offices must respond within a certain amount of time. However, the draft does not stipulate what happens if the authoritative offices fail to respond.
ATTACHMENT B - 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.
…

[2024] AATA 1809

26 March 2024

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