1825698 (Refugee)

1825698 (Refugee) [2024] AATA 2991 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)
CASE NUMBER:  1825698
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mary Sheargold
DATE:7 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 07 May 2024 at 11:57am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – victim of systemic and long-term family violence by her ex-husband – fears harm from ex-husband – long-term abuse – potential actions constitute significant harm – a real risk that she would suffer significant harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
SZTGM v MIBP (2017) 262 CLR 362
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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

[Ms A] is a [age] year old Vietnamese citizen who arrived in Australia on [date] September 2016 holding a tourist visitor visa. That visa ceased on [date] December 2016 and [Ms A] was granted several Bridging Visa Es until one naturally ceased on 27 February 2017. [Ms A] then remained in Australia unlawfully from that date until she made her application for a protection visa on 31 May 2018; she was granted another Bridging Visa E on 8 June 2018 and has held a visa of that class since. On 31 August 2018, the delegate refused her application.
This is her application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2018 to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[Ms A] appeared before the Tribunal on 19 April 2024 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 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).
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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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.
‘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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
However, torture 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 ICCPR.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
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.
The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
[Ms A]’s Vietnamese nationality is not in issue. She has provided the Department with a copy of each of her passports issued by the Immigration Department, Socialist Republic of Vietnam, the most recent valid from [2018] to [2028]. The Department accepted her claimed identity and nationality set out in her passport, as does the Tribunal. The Tribunal finds that Vietnam is [Ms A]’s receiving country for the purposes of assessing her protection claims.
Relevant background, claims and evidence
[Ms A] was born in Buon Thuot, Dac Lac in [year]. She is the second eldest of [number] siblings. When [Ms A] was in [a grade], her father became unwell and she had to leave school to stay at home and care for him, and she was his primary carer until he passed away. Her parents brought the children up respecting the Buddhist faith, but following her father’s death, her mother reverted to her Christian religion in which her own step-mother had raised her.
When [Ms A] no longer needed to care for her father on a full-time basis, her mother helped her to obtain an apprenticeship as a [Occupation 1] at [a workplace] in Ho Chi Minh City; [Ms A] had attended appointments with her mother over many years. [Ms A]’s evidence is that the couple who owned the [business] deemed [Ms A] to be an excellent worker and that she would make an ideal match for their eldest son, and so [Ms A] agreed to marry him. She then moved into the home her parents-in-law owned, living with her husband, and continued working with her parents-in-law in the [business].
[Ms A]’s evidence is that although her husband had seemed like a kind and good person prior to their marriage, soon afterwards things began to change. [Ms A] said her husband was meant to be working in the [business] along with her and his parents, but that he would often abscond from work and would head to a bar to drink. With time, his drinking became heavier and heavier, and when he was intoxicated he would become paranoid and jealous; then he began to be verbally abusive and would often threaten serious physical abuse to [Ms A].
The couple did have one son together. He was born in [year]. [Ms A] told the Tribunal that her son struggled throughout his childhood and adolescence, watching the abuse his father would doll out to his mother and anyone who tried to persuade him to reduce his drinking. [Ms A]’s son became disengaged from school and eventually stopped attending. Like his father, he seemed unable to hold down employment, and addiction got the better of him. [Ms A] believes her son is addicted to crystal methamphetamine. [Ms A] told the Tribunal that both her son and ex-husband continue to live with her former mother-in-law and both depend on her for financial and other support, despite her being around [age] years old.
At the hearing, [Ms A] described several specific instances that had led her to believe her marriage would not be salvageable, despite her best intentions to do right by her in-laws who had given her the dream career as a [Occupation 1]. The first of those occurred when her son was around [age] years old. Her ex-husband returned home one evening heavily intoxicated, and grabbed a knife from the kitchen and began threatening her. [Ms A] told the Tribunal she had to run away with her son to a friend’s house for safety. Similar incidents occurred at different points during their marriage.
The pattern of verbal and emotional abuse became an ingrained part of [Ms A]’s life. She told the Tribunal that her parents-in-law adored their son and while they would scold him for drinking too much, they never really attempted to stop him from engaging in behaviour that was clearly adversely affecting both his own life and the lives of those around him. [Ms A]’s evidence is that she was expected to provide her ex-husband with money to facilitate both his gambling addiction and his alcohol addiction. Further, [Ms A] told the Tribunal that if she did not appear happy when he asked for money or when she handed it to him, he would become angry and would insult her. [Ms A] said she was hurt and disappointed that no one would support her within the family. She noticed the pattern continue with her own son, who was doted on by his paternal grandparents; in her view, they enabled the behaviours that led him to using drugs.

Eventually, by around 2015, [Ms A] decided she needed to escape the violence in her home. Her son had reached adulthood and she felt he was capable of defending himself against his father when needed. She left the home her parents-in-law owned and moved in with a friend. She was able to obtain a divorce in 2016. [Ms A] told the Tribunal that her ex-husband quickly remarried following their divorce, but that his second marriage did not last more than a year because his new wife struggled with his drinking and emotional outbursts.
It was after the divorce that [Ms A] became aware of her ex-husband’s increasingly disturbing conversations had with members of his own family and with [Ms A]’s friends. [Ms A]’s evidence is that even today, her ex-husband will visit her best friend’s home, ask her to cook for him, and begin to speak in plain terms about his intent to kill both [Ms A] and himself should he ever see [Ms A] again. [Ms A] told the Tribunal that she speaks with her best friend in Vietnam nearly every day, and that he is aware that they remain in contact with one another.
[Ms A] said that during their marriage, her ex-husband would show contrition for his drunken outbursts when he was sober, and would tell [Ms A] that as long as he could see her sleeping under the same roof as him, he would not harm her. She is fearful that, since leaving her in-laws’ home, she is no longer safe from harm being inflicted upon her by her ex-husband. It is her belief that her ex-husband remains obsessed with her because she has been his one true love, that he is blinded by his love for her, and that he cannot reconcile his negative behaviours towards her with a conclusion that it is anything other than an expression of his love.
[Ms A] explained that both her ex-husband’s aunt and his sister had independently informed her of multiple discussions her ex-husband had had with each of them where he outlined his intent to kill [Ms A] if she returned to Vietnam. She stated that he has advised them that he wants to kill her and kill himself, but that he would spare their son. [Ms A] said she had been told specific and graphic plans, and that she is terrified of returning home because her ex-husband has threatened her with knives multiple times during their marriage. While [Ms A] says her ex-husband would only become violent and abusive when he was intoxicated, she says it is now apparent that he is making statements evidencing his paranoia and jealousy when he is sober. [Ms A] told the Tribunal she believes that her ex-husband never makes direct threats to her because he knows she may take more caution and be more wary around him.
During the hearing, [Ms A] explained that her own nuclear family lived just 50 metres down the road from her in-laws, and so that during her marriage she had tended to feel comfort in the knowledge that her own family was nearby. She explained to the Tribunal that as her ex-husband’s drunkenness became worse and worse, he would often pick fights in the streets with passing motorists, and that his parents and siblings would need to intervene and physically remove him back to the house, sometimes having to tie him down until he sobered up and was able to behave rationally again. However, nothing has deterred her ex-husband from his alcohol addiction in over 30 years.
I enquired as to whether [Ms A] believed her ex-husband suffers from a mental illness, and she explained that for the regular middle-class families like theirs in Vietnam, seeking assistance for mental health concerns does not yield positive outcomes for families. [Ms A] said that in her experience, people who are put into state-run psychiatric facilities appear to have declined in both physical and mental health when they are discharged. [Ms A] told me that proper psychiatric care is only available to the upper class and upper middle class who can afford private hospital treatment. She said she believes that in state-run facilities, families need to bring food to loved ones to prevent malnourishment. In short, she said the custom is for families to do everything they can to care for their mentally ill kin at home, and with in-home settings.
In that respect, she noted there is a dearth of support networks available to families attempting to support loved ones who are plagued by addiction or other mental health concerns. In the case of [Ms A]’s ex-husband, the evidence she has presented to the Tribunal suggests that there is not only an alcohol addiction, but likely an unaddressed severe mental illness that affects her ex-husband’s rationality and perceptions of reality.
The Tribunal enquired as to whether there was any known history of mental disturbance throughout her ex-husband’s family, and [Ms A] provided a spontaneous account of her ex-husband’s grandfather, who was known by the family to struggle with feelings of displacement and paranoia after he had consumed alcohol. [Ms A]’s evidence painted a picture of a man with a presentation similar to her ex-husband. She stated that as he aged, even when he was sober his thoughts could become disjointed and he would have delusions and see things that other people did not see. [Ms A] delivered this evidence dispassionately and, in the Tribunal’s view, without cognition of the similarities of the behaviour she described in her ex-husband to the behaviour she described in his grandfather.
[Ms A] explained to the Tribunal that soon after her ex-husband’s second wife divorced him, she realised her long-term safety was at risk. She had wanted to find a way to get as far away from her ex-husband as possible. She told the Tribunal that after meeting [Mr B] via a dating website, she recognised that Australia could be a viable option for a place to live. [Ms A]’s evidence is that, after meeting her in Vietnam, [Mr B] returned to Australia and organised a visitor visa for [Ms A] to come out and stay with him. [Ms A] admitted to the Tribunal that she had only disclosed to [Mr B] that she was a divorced woman and had not gone into detail regarding the long-term abuse she had suffered in her marriage nor had she revealed her concern that her ex-husband wanted to kill her. Rather, she saw [Mr B]’s affection for her as a convenient means to assist her escape from the decades of violence and fear she had suffered in Vietnam.
Although [Ms A] does not speak English, and [Mr B] does not speak Vietnamese, they managed to communicate in their relationship relying on Google Translate. [Ms A] said her mother and sisters were wary of [Mr B], but that she was resolved to escape Vietnam and accepted [Mr B]’s gift of an air ticket and visa to relocate. [Ms A] said that she came to live with [Mr B] in [a city], and that she ended up becoming an unlawful non-citizen because she believed [Mr B] was helping to extend her stay, but that he failed to lodge the visa application needed in time; he then decided their relationship was not viable and told [Ms A] she should return to Vietnam. This occurred five months after [Ms A] arrived in Australia. [Ms A] was reticent to return to Vietnam and she moved to Melbourne where she has lived since. During the hearing, she emphasised to the Tribunal on many occasions that she had decided she would rather die in Australia than return to Vietnam, and that she would take her own life before being deported, if that were ever proposed.
Based on all the evidence [Ms A] has presented to the Tribunal, the Tribunal is satisfied that [Ms A] was the victim of systemic and long-term family violence by her ex-husband in Vietnam, and that he continues to pose a threat to her livelihood since they have formally divorced.
Well-founded fear of persecution
[Ms A] has not made any claims or provided any evidence to demonstrate that she faces a real chance of persecution if she returns to Vietnam on the basis of her race, religion, nationality, political opinion, or membership of a particular social group.
At the hearing, the Tribunal confirmed with [Ms A] and with her representative that she makes her claims seeking complementary protection under s 36(2)(aa) of the Act. She does not make claims that she fears persecution on the basis of being a divorced woman, a single woman, or as the member of any other particular social group. Based on all the evidence available, the Tribunal finds she does not meet the definition of ‘refugee’ set out in s.5H of the Act, nor is the criterion in s.36(2)(a) of the Act met.
Real risk of significant harm
Having concluded that [Ms A] does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). To do this, the Tribunal must determine whether, as a necessary and foreseeable consequence of being removed from Australia to her receiving country, Vietnam, there is a real risk that [Ms A] will suffer significant harm.
The Tribunal accepts [Ms A]’s account of the repeated and sustained acts of violence against her perpetrated by her ex-husband, and further accepts this violence as the primary driver in the breakdown of their marriage. [Ms A] is clearly fearful of returning to Vietnam because of her concern that her husband is mentally unwell, untreated, and volatile. He has given repeated, pathological accounts to his family members and [Ms A]’s friends as to his intent to take her life should he ever see her again.
After a careful consideration of [Ms A]’s oral evidence provided at the hearing, the Tribunal is satisfied that, as a necessary and foreseeable consequence of being removed from Australia to her receiving country, Vietnam, there is a real risk that she will suffer significant harm. As set out above, the Act provides an exhaustive definition of ‘significant harm’. 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.
In [Ms A]’s case, she has already suffered cruel punishments at the hands of her ex-husband, and he has had threats made against her life. Those threats culminate with the threat of taking his own life after killing [Ms A], and must be afforded significant weight. The Tribunal’s view is that these potential actions constitute significant harm as defined in the Act.
Given the history of violent confrontation between [Ms A] and her ex-husband, and the fact that he has demonstrated his intent to end [Ms A]’s life should he see her again, the Tribunal is satisfied that in [Ms A]’s particular circumstances, there is a real risk that she would suffer significant harm if she returned to Vietnam.
Therefore, based on the evidence presented to the Tribunal at review, the Tribunal is satisfied that [Ms A] satisfies s.36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Mary Sheargold
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 2991

7 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction