1824513 (Refugee)

1824513 (Refugee) [2024] AATA 3252 (1 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824513
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Garry Fitzgerald SC
DATE:1 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 May 2024 at 12:04pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – participation in Formosa protest – warned by villagers – no harm on return visits – wife’s psychological issues – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5,36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Vietnam. He applied for the visa on 29 March 2018. On 17 August 2018, the delegate refused to grant the visa.
The applicant appeared before the Tribunal on 5 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, who is referred to later in these reasons. [1] The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
[1][Name deleted].
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). 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.
Refugee
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).
Under s 5J(1), a person has a well-founded fear of persecution:
a.if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,
b.if there is a real chance they would be persecuted for one or more of those reasons, and
c.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.
Complementary protection
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 (DHA), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
OTHER MATERIAL BEFORE THE TRIBUNAL FOR THE REVIEW
The Tribunal has also had regard to the documents contained in the applicant’s Department [file], as provided to the Tribunal by the Department) and contained in the applicant’s Tribunal file.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether:
a.there is a real chance that, if the applicant returns to Vietnam, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,
b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality, country of reference and receiving country
The Department conducted identity checks on the applicant and was satisfied as to the identity papers which he produced. The Tribunal accepts that the applicant is a Vietnamese citizen. Accordingly, Vietnam is the country of reference and receiving country for his application for a protection visa.
The applicant’s travel and immigration background
According to the applicant’s oral evidence at the hearings, the information contained in his Departmental application [2] and Departmental records, the applicant arrived in Australia [in] March 2018. He came to Australia on a visitor visa (class FA-600). He has twice travelled back to Vietnam, for about two weeks on each occasion, since he first arrived in Australia. [3] He has not been to any other countries.
[2]Part C of his Departmental protection visa application lodged on 29 March 2018.
[3]Departmental movement records show the applicant left Australia [in] June 2019, returning [in] July 2019. He left Australia again [in] October 2019, returning [in] October 2019. At the hearing he confirmed that on each occasion he returned to Vietnam.
The applicant’s background
The following background is based on the applicant’s oral evidence at the hearings and the information contained in his Departmental application, which the Tribunal accepts as true.
The applicant is in his mid-[age range].
Background in Vietnam
He grew up in Hue province in central Vietnam on the coast, in [a] commune in a rural area of the province on the coast. The village he grew up in the commune was small, with only [number] or so residents. He lived in that village with his family until he left for Australia. He attended a local school which serviced the local villages and had a few hundred students. His mother and two of his brothers still live in this village in Vietnam. His father passed away in 2020.
The applicant completed high school in Vietnam in May [year]. He began a diploma course in [subject] in Hue but he lasted only about two weeks before coming to Australia. He had not worked while he was in Vietnam.
He confirmed that he did not have any difficulties leaving Vietnam for Australia in March 2018. He simply bought a flight ticket, took his passport and left Vietnam.
The applicant gave evidence about his claimed political activities in Vietnam which is set out in detail below in the section on his claims.
As to his religious activities in Vietnam, at first the applicant said that he was not religious. Upon further questioning, he said that his religion was Buddhist, but he was not very religious. In Vietnam he usually went to the local temple in his commune three times a year: twice for religious ceremonies and again for the Vietnamese lunar year celebration.
Background in Australia
While in Australia, the applicant has lived in Melbourne. He has worked [in] Australia. He currently works for a business in [location]. He has worked there for 1 ½ years. He has not studied while he has been in Australia.
He has [a] brother who lives in [Suburb 1] in Melbourne. His [brother] also applied for protection which the applicant said was granted to him. He also has an uncle who also lives in [Suburb 1] and is an Australian citizen.
The applicant married his wife in Australia [in] December 2022. They do not have any children. They first met in Australia in about April 2022. The Tribunal asked him twice at the hearing to send a copy of his marriage certificate to it. He has not done so. [4]
[4]Nevertheless, the Tribunal accepts for the purpose of this review that she is his wife.
His wife told the Tribunal she was originally from Ho Chi Minh City. She did not know the applicant in Vietnam, nor did she live in the local area of the applicant in Vietnam at the relevant times.
The applicant confirmed that he has not been involved with any political parties, groups, associations or activities while he has been in Australia.
He has continued to attend Buddhist temples while in Australia. He goes about twice a year to a Buddhist temple in [Suburb 1] to celebrate Buddhist ceremonies. He agreed that he was slightly more religious in Vietnam than in Australia but they are much the same in terms of his level of engagement. He said that he did not read Buddhist religious texts or scriptures.
The applicant’s protection claims
Claims at the hearing
The applicant’s claims for protection at the hearing ultimately related to his claimed political opinion and activity while in Vietnam. At the hearing, he confirmed that he was not making any claims for protection based on his religious beliefs or activity while he was in Vietnam.
He gave evidence about political activities in Vietnam involving two protests, concerning two different matters: the first being the Formosa protest (discussed later) and the second being a protest about Hi-Nam 981. [5] His protection claims centred on the Formosa protest, because his evidence was that he did not have any difficulties in Vietnam arising from the second Hi-Nam protest.
The Formosa protest claim
[5]His evidence was that this second protest was about oil drilling/mining and territorial claims by China against two Vietnamese islands – Hoang Sa and Truong Sa.
His protection claims relate only to his involvement in a single protest which occurred in 2016 concerning the Formosa pollution incident. It took place when he was at school and about [age] years old. [6]
[6]At the hearing, the applicant initially said that the Formosa protest took place in about 2012-2013, when he was [age range] years old and still at school. When he was taken to the country information for Vietnam later in the hearing, it was pointed out to him that this information referred to the Formosa incident occurring in 2016: DFAT Country Information Report Vietnam dated 11 January 2022 (DFAT Report), at [3.66]. He then accepted that was the correct year for the protest.
His involvement in what led to the Formosa protest was through a communal group in his local ward.
He first got involved with this communal group while he was in high school. It was organised and run within the high school, as an official and approved group within the school. There was a leader and three other members who directed the activities of the group. He was not one of these people. He was just a participant in the group. The leaders and other members directed others to participate in environmental protection and other social activities in the local community. For example, participants in the group would respond to natural disasters such as flooding or by collecting and clearing rubbish in rural areas. He said that he was involved in some of these activities with between 10 and 20 other participants.
The Formosa protest was organised by the communal group. It took place in his local village in 2016. His village was a fishing village. He said that it involved a protest about the emission of waste and pollution to the waters which had caused harm to local fishermen. This had caused them to lose income. He did not know exactly against whom the protest was being made but said he thought it was against a factory which might belong to China. He said that the protesters were asking for compensation for their loss of seafood and income.
There was only one protest by the residents of his local commune in which he participated concerning Formosa while he was in Vietnam. This protest involved about 100 to 200 people from the local commune going on a ‘march’ for three or four days, seeking compensation for the pollution.
At the hearing, the applicant was referred to Vietnamese country information concerning the Formosa incident which stated that:
‘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… DFAT understands that Formosa protests are no longer occurring, at least on a large-scale. This is in part because of the deal made with the company to provide compensation to victims’. [7]
[7]DFAT Report, at [3.66].
The applicant had no comment to make on this passage.
The applicant was asked whether anything harmful had happened to him in Vietnam because of the two protests.
He confirmed that nothing harmful had happened to him concerning the second Hi-Nam protest.
However, after the local Formosa protest, he was asked by local leaders (the leader of the village and the leader of the ward) to see them. They were not happy about the Formosa compensation claim. They told him if he continued to protest, he would be arrested and imprisoned. The applicant confirmed that the local authorities referred to were not the police. He also said that everyone in the commune involved in the protest had been required to meet with the leaders referred to and been told the same things as him. He said that nothing else happened to him concerning this protest. To the best of his knowledge, no one was arrested or imprisoned because of the Formosa protest in his commune.
The applicant was asked what he thought would happen to him if he returned to Vietnam now. He said that he was concerned he would be arrested for his political opinion because of his involvement in the local Formosa protest in 2016.
The applicant confirmed at the hearing a summary of his evidence about the harm he had suffered in Vietnam as a result of the Formosa protest as follows: namely, that he was warned or threatened by local leaders, but not put into custody, arrested, beaten or harmed in any other way as a result of this protest. He also confirmed that his only claim for protection was based on the Formosa protest and the threats or warnings made against him by the village leaders.
He confirmed that nothing harmful had happened to him in Vietnam because of his involvement with the Buddhist religion.
His written claims
The applicant also made written claims in his protection application lodged with the Department on 29 March 2018. He said that his uncle had filled out this form for him. He said that he told his uncle about the Formosa protest and his uncle then wrote down his answers to the protection questions. He said he used Google Translate to understand what his uncle had written.
At the hearing, he accepted that some statements in his Departmental application were false.
On page 28 of the application, it stated that the applicant has committed a serious crime but had not been charged. The details of this were explained in the application as his being in custody because he protested about the environment and religion. He agreed that he had not been in custody and had not suffered any harm because of religion.
On page 29 of the application, it again stated that he had taken into custody for joining protests about the environment. He accepted that there was only one protest in which he was involved and that he had not been taken into custody because of that protest. He was also not making any claims for protection based on religion.
On page 30 of the application, it referred to him experiencing harm in Vietnam because he had been beaten while he was in custody. He confirmed that he had not been beaten and had not been in custody.
On page 31 of the application, in answer to a question about whether he thought he will be harmed or mistreated if he returns to Vietnam, it stated that ‘I will answer if I need to’ at an interview. He confirmed that he had not been interviewed by the Department. His answer to this question at the hearing was that the only harm he feared was being arrested or imprisoned because of the Formosa protest, as discussed above.
His wife’s psychological issues
During the hearing, the applicant also sought protection in Australia because of his wife’s ‘psychological issues’. This is discussed later in these reasons.
Other claims
The Tribunal’s own review of the material before it does not suggest or disclose any other claim open to the applicant which clearly emerges from or on the material before it.
Findings on the applicant’s claims for protection
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. 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. [8] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. [9]
[8]Section 5AAA of the Act.
[9]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal found the applicant to be generally credible and reliable. It accepts as true the claims made orally by the applicant at the hearing, as set out above (either as to the facts alleged or the sincerity of the beliefs expressed). To the extent that his oral evidence differs from the claims made in his Departmental application – for example, the criminal charges, beatings by police and being taken into custody – the Tribunal rejects those written claims.
REASONS FOR THE TRIBUNAL’S DECISION
Assessment of refugee criterion
The Tribunal’s findings must be applied to the relevant refugee criterion, namely that the applicant will be a refugee and have a well-founded fear of persecution under s 5J(1) if the Tribunal is satisfied that:
a.he fears being persecuted for at least one of the reasons set out in s 5J(1)(a) (the refugee nexus); and
b.there is a real chance he would be persecuted for that reason: s 5J(1)(b).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

The persecution must involve ‘serious harm’ to the person: s 5J(4)(b). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The criterion in s 5J(1)(a) also contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The applicant’s fear of harm arising from the Formosa protest
The Tribunal does not accept that the applicant holds the necessary subjective fear of persecution arising from the Formosa protest.
Although he professed this fear, he did not leave Vietnam for Australia until March 2018, but the Formosa protest had occurred more than a year earlier, in 2016. Moreover, when the applicant was earlier asked by the Tribunal why he had left Vietnam to come to Australia, he said that he came to visit his uncle and [brother]. He was then asked if there were any other reasons for him coming to Australia then. He said no. In other words, he did not mention the Formosa protest as a reason for coming to Australia. In addition, he has also returned twice to Vietnam from Australia, for about a month in total in 2019. On the first trip he travelled to visit his family, including his ill father, in the village in the Hue province. The second trip was to see his father again who was in a critical condition. His father passed away in 2020. The applicant confirmed that, apart from his father’s critical illness during his second trip, that nothing bad had happened to him on either trip while he was in Vietnam. Although the Tribunal accepts his explanation of his reasons for the trips, the Tribunal does not accept that an applicant who had a genuine fear of persecution as professed would delay leaving the village for over a year, not mention it as a reason for leaving and then return to his village twice and risk the claimed arrest and imprisonment over the Formosa protest.
The Tribunal will accept, for the purposes of this review that a refugee nexus exists for this claim. Any putative persecution would be for one of the reasons mentioned in s 5J(1)(a) (namely, political opinion) and that reason would be the essential and significant reason for the persecution.
However, the Tribunal does not accept that he suffered serious harm in Vietnam in 2016 because of the Formosa protest. Putting it at its highest, he was threatened or warned once about being involved in further protests. Nothing else happened to the applicant after the protest, or when he returned to Vietnam in 2019. In the Tribunal’s view, the threats or warning do not come within the scope of ‘serious harm’ which is instanced in s. 5J(5).
In any event, the Tribunal does not accept that there is a real chance of serious harm to the applicant in the foreseeable future if he returns to Vietnam because of this claim.
The country information suggests that the Formosa incident is no longer a real concern to the Vietnamese authorities or public. The applicant’s two trips back to Vietnam without incident in 2019 also suggest this is the case.
The applicant was asked to comment on whether there was a real chance of him suffering serious harm if he returned to Vietnam, in circumstances where: the Formosa protest was about eight years ago; he had only been subject to a single threat or warning in 2016 and no other actions or harm; and, he had gone back to Vietnam twice without any problems. It was also suggested to him that the country information disclosed that Vietnam strictly controls entry and exit of persons, but that he had left Vietnam without any problems and returned twice and left again without any problems. [10]
[10]DFAT Report, at [5.25] – [5.28].
In response to this, the applicant said that he was now married and his wife had psychological issues. He said if possible he should be given a chance to stay and take care of his wife. The Tribunal suggested that his response had not addressed the question of the real chance in the circumstances outlined; the applicant then said that he did not have any response to this question.
In the Tribunal’s assessment, the prospects of the applicant suffering serious harm in the foreseeable future if he returns to Vietnam because of the Formosa claim are remote.
The Tribunal is not satisfied, for these reasons, that the applicant fears persecution and that there is a real chance of serious harm to the applicant in the foreseeable future if he returns to Vietnam because of the Formosa claim.
His wife’s psychological issues
On his hearing invitation response, the applicant said that he wanted his spouse to give evidence at the hearing. Before the hearing, his wife indicated to the hearing officer that she did not wish to give evidence. During the hearing, the applicant and she both indicated that she would give evidence after all, but she could not give evidence about the applicant’s time in Vietnam. His wife said at the hearing that she had not applied for protection in Australia. She was not a secondary applicant on the application for review.
The applicant referred at the hearing to his wife’s psychological issues as a reason why he should not return to Vietnam.
They both said at the hearing that they wanted the applicant to be by his wife’s side in Australia because she has psychological issues, instead of him returning to Vietnam without her. In other words, despite their marriage, she would not return with him to Vietnam if he went back.
The wife’s ‘psychological issues’ were not explained, detailed or outlined, beyond his wife saying she was being treated by a psychologist. No medical reports about this were tendered to the Tribunal.
In the Tribunal’s view, this reason does not affect the conclusion that there is no real chance that the applicant will suffer serious harm if he returns to Vietnam.
Although it could be distressing for him to return without her, any harm he would suffer because of that reason would not have a refugee nexus. Moreover, the posited resulting harm, which is vague and conjectural, would not come clearly within the scope of serious harm; and there would be no agent of harm inflicting it on him. Any prospects of him suffering persecution for this reason are remote.
Conclusion
For the above reasons, the Tribunal is not satisfied that, based on these claims, considered separately and together, that the applicant fears persecution, that he would be persecuted for a refugee reason and/or that there is a real chance he would suffer serious harm for that reason, in the foreseeable future, if he returns to Vietnam.
Conclusion on refugee criterion
For the reasons given above, the Tribunal is not satisfied, based on these claims, considered separately and together, that the applicant:
a.is a refugee within the meaning of s 5H;
b.has a well-founded fear of persecution within the meaning of s 5J(1); and
c.is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Assessment of complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa): namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vietnam, there is a real risk he would suffer significant harm, as exhaustively defined in s 36(2A) of the Act.
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[11] (which applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J).
[11]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick & Jagot JJ, 20 March 2013) per Lander & Gordon JJ at [246], Besanko & Jagot JJ at [297], Flick J at [342].
‘Significant harm’ for these purposes is exhaustively defined in s. 36(2A): 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
The Tribunal does not accept that the applicant suffered significant harm in Vietnam in 2016 because of the Formosa protest. Putting it at its highest, he was threatened or warned once about being involved in further protests. Nothing else happened to the applicant after the protest, or when he returned to Vietnam in 2019. In the Tribunal’s view, this isolated threat or warning does not come within the scope of ‘significant harm’ in s 36(2A).
Further, the Tribunal does not accept that there is a real chance of significant harm to the applicant in the foreseeable future if he returns to Vietnam because of the Formosa claim, for similar reasons to those set out above when considering the prospects of him suffering serious harm for that reason. In the Tribunal’s assessment, the prospects of the applicant suffering significant harm in the foreseeable future if he returns to Vietnam because of the Formosa claim are remote.
As to his wife’s psychological issues, there are no substantial grounds for believing, on the material before the Tribunal, that he will suffer harm if he returns to Vietnam without her which would constitute significant harm. Any such harm to him is vague, unclear and speculative. In addition, there is no agent of harm who would intentionally inflict any harm on him. In the Tribunal’s view, the prospects of the applicant suffering significant harm if he returns to Vietnam due to his wife’s psychological issues are remote.
Based on matters considered above, with each of them considered both separately and together, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vietnam, there is a real risk that he will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Assessment of family member
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).
Conclusion
For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicant pursuant to s 36(2) of the Act. Accordingly, the Tribunal has concluded that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Garry Fitzgerald SC
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.
…

[2024] AATA 3252

1 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness