1904274 (Refugee)

1904274 (Refugee) [2024] AATA 1137 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate HOANG
CASE NUMBER:  1904274
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mara Moustafine
DATE:4 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2024 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – maritime arrival – statutory bar – not ‘unauthorised maritime arrival’ and ‘fast track applicant’ as defined – first application not barred, so second application invalid – religion and political opinion – Roman Catholic, member of Viet Tan and returned failed asylum seeker – mistreatment and discrimination by teachers and classmates – police’s raid of church – attendance at demonstrations and social media activity in Australia – fear of harm from government, police and thugs – credibility – departure on passport in own name – inconsistent claims and evidence – no fear of harm on religious grounds claimed at hearing – not Viet Tan member, but follower on social media, with no recent activity – activity in Australia otherwise than to strengthen claims – parents’ continuing attendance at same church – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5H(1)(a), 5J(1), (6), 36(2)(a), (aa), (2A), 48A, 48B, 65, 91K, 427(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Luu v Renevier (1989) 91 ALR 39
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 Immigration and Border Protection on 29 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of Vietnam and is [Age] years old.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary) visa on 11 March 2015. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Temporary Protection visa (TPV) on 28 June 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa (SHEV) on 22 September 2020 (the second visa application) (Case No. 2104815). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20).
The first application for a TPV on 28 June 2017 was refused by the delegate on 29 September 2017. The delegate refused to grant this visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. An application for review of that decision was made on 25 February 2019.
The second visa application was refused by a delegate on 12 April 2021. An application for review of that decision was made on 15 April 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid.
In view of the above circumstances, which have resulted in the applicant having two applications for review of two separate decisions made by delegates of the Minister, the Tribunal decided to combine the two reviews pursuant to s 427(2).
On 6 June 2023, the applicant was invited to appear before the Tribunal at a joint hearing of the two separate applications to give evidence and present arguments.
The applicant appeared before the Tribunal on 22 June 2023. 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.
At the beginning of the hearing the Tribunal outlined the procedural history of the applicant’s two applications as set out in paragraphs 3 – 9 above. It advised the applicant that the Tribunal would proceed with the review of the delegate’s refusal of his first application but had no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
Noting that the applicant had submitted the same statement of claims in both cases, the Tribunal gave assurance that it would consider all evidence and submissions provided with his second application when reviewing his first application. The representative confirmed that she was satisfied with this approach.
CLAIMS AND EVIDENVCE
First Protection visa application (Temporary Protection visa (TPV))
According to his TPV application form, the applicant was born on [Date] in [Location], [Village], [District], Nghe An province, Vietnam. The applicant speaks, reads and writes in Vietnamese and speaks a little English. He identified his ethnicity as Kinh and his religion as Catholic Christian. He completed primary studies at [Village] Primary school in [Year] and commenced secondary studies at [Village] High School in [Year]. After school, he helped his parents on their rice farm. The applicant’s parents are still living in [District], Vietnam. His older sister, brother-in-law and their [children] are in Australia. The applicant departed Vietnam from Ho Chi Minh City in April 2013 and was ‘in transit’ in [Countries]. He left on a passport in his own name but no longer has this passport. He provided a copy of his Vietnamese birth certificate (with translation) for the purpose of identification.
The applicant’s protection claims, as set out in a statement dated 27 June 2017 attached to his application form, were that he fears serious harm in Vietnam from the government, including police and thugs hired by them, because of his Catholic religion, his political opinion as a member of the Viet Tan party and his status as a failed asylum seeker with anti-Communist political views. Key points can be summarised as follows:
Problems in Vietnam
a.As a child born into a Catholic family, he was involved with a Catholic youth group, attended Bible study, helped with the Mass and other church ceremonies. He faced mistreatment and discrimination at school from non-Catholic classmates and teachers.
b.When he was about [Age] years old, police and thugs came to their church one Sunday and beat the priest, nuns and others in the large crowd of people that had gathered, including him and his family. The police hit him with their batons and threw stones at him so he ran away and hid, with scratches and bruises on his body. However, in his entry interview, he said he was not at the church when this happened because he was only [Age] years old and scared that he would be reported to the Vietnamese government.
c.After this incident things got worse for him and his family. He was ridiculed at school by non-Catholics and people in black clothing and masks rode motorbikes past their house throwing stones and faeces. Non-Catholics tried to convince people not to shop at his sister’s fruit and vegetable store so her business struggled.
d.There are laws in Vietnam that Catholics cannot have certain jobs or enter politics unless they renounce their religion.
e.He decided to escape Vietnam with his sister and her husband as he did not want to live in a country where he would be discriminated against and face harm from the police.
f.His brother-in-law made all the arrangements for his travel and provided him with a passport which he gave back to him during the journey to Australia. He does not know if the passport was genuine or what his brother-in-law did with it.
g.When he was in detention, his sister told him that his parents told her that plain clothes police came to their house asking where he was and they told him he had gone to Australia.
Activities in Australia
h.He started following the political situation in Vietnam on the internet and discussing what was happening with other asylum seekers and Vietnamese people in the community.
i.In 2016 he joined the Viet Tan party, which he heard opposes the Communist government and wants to fight for human rights in Vietnam. He also engages with them on social media.
j.He attended a demonstration organised by the Viet Tan party in Sydney, holding anti-government campaign signs and the flag of South Vietnam, wearing a scarf with their colours. He also attended large demonstrations and parades in Canberra in April and May 2017 to mark the ‘fall of Saigon’ and a protest in Sydney [in] May 2017.
Fear of harm in Vietnam
k.He fears that if he is returned to Vietnam, he will be subjected to serious harm, including being physically harmed, imprisoned and killed by the Vietnamese government, who will consider him a reactionary because he left Vietnam to seek asylum in Australia and also target him for his political activities, of which they will be aware.
l.The Vietnamese government will discriminate against him in employment as he is a Catholic.
m.He is afraid the Vietnamese government will know that he has been in Australia seeking asylum and has anti-communist political views because the Department of Immigration has informed him that his details were released on the internet in a data breach while he was in detention.
n.He cannot relocate to another area in Vietnam because the government controls all areas of Vietnam and will find and harm him. The government will not protect him because they hate Catholics and will regard him as a reactionary.
Supporting documents submitted to the Department included certified copies of the applicant’s Vietnamese birth certificate with English translation, photographs of the applicant in church in Vietnam and at demonstrations in Australia.
The applicant attended a Protection visa interview with the Department on 31 August 2017, which was conducted with the assistance of a Vietnamese interpreter. Among other things the applicant clarified that he was not actually a member of the Viet Tan party but joined their [Social media] page. He also claimed that the authorities had been to his parents’ house many times since he left Vietnam, accusing him of betraying his country and protesting against the government.
In a post-interview submission dated 14 September 2017, the applicant’s representative from [Organisation] posited that the applicant would face serious or significant harm in Vietnam for reasons of his Catholic religion, his imputed anti-government political opinion due to his Catholic religion; his anti-government political opinion and involvement with an opposition party; and his membership of a particular social group of failed asylum seekers. The submission included excerpts of generalised country information related to the persecution of Catholics in Vietnam and Nghe An province and Catholic, political and human rights activism in Vietnam, as well as citations from previous Tribunal decisions. The representative submitted that the applicant’s risk profile was increased by the anti-government profile of his family and his illegal departure from Vietnam as his brother-in-law had apparently stated in his entry interview that their travel and passports were arranged by a people smuggler. The representative also posited that there was photographic and online evidence that the applicant had attended protests in Australia, including outside the [Location] in Canberra and had links to the Viet Tan party on [Social media], which increased the chance that he would be known to the Vietnamese authorities and that his exposure in the online data breach would increase the chance that the Vietnamese authorities would use his details to inquire into his online activities. Photographs of the applicant attending protests in Australia and [Social media] posts from a ‘[Alias]’ sharing Viet Tan and other posts were also provided.
Department decision
On 29 September 2017 the delegate refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. The delegate accepted that the applicant was from a Catholic family from Nghe Anh province and was present at the Con Cuong church incident in 2012 but was not satisfied that he faced a real chance of serious harm due to his Catholic religion. He accepted that the applicant attended protest rallies against the Vietnamese government in Australia, was a follower of the Viet Tan party on [Social media] and shared anti-government materials online. However, he found that the applicant only undertook these political activities in Australia in order to strengthen his protection claims; and as his low level political activities in Australia would not attract the attention of the Vietnamese authorities, he would not face serious or significant harm in Vietnam. Nor did the delegate accept that the applicant would face a real chance of serious harm, even if he was briefly detained and interviewed on return to Vietnam as a failed asylum seeker, noting that he would be regarded as a victim of people smuggling rather than as a criminal facing penalties for departing Vietnam illegally. The delegate accepted that some of the applicant’s personal details were unintentionally disclosed in the Department’s data breach of persons in immigration detention in 2014. He was not satisfied however, that, on his return to Vietnam, the applicant would be perceived by Vietnamese authorities to have a political opinion as a result.
On 4 October 2017, the applicant’s matter was referred to the IAA for a review. On 23 April 2018 the IAA affirmed the decision not to grant the applicant a Protection visa. However the decision of the IAA was quashed by the Federal Circuit Court which declared that the applicant was not an ‘unauthorised maritime arrival’ as defined in s 5AA of the Migration Act 1958 (Cth) (the Act) and, therefore, not a ‘fast track applicant’ as defined in s 5 of the Act. Therefore, a decision refusing to grant him a TPV is a part 7-reviewable decision by the Tribunal. On 19 February 2019 the applicant was re-notified of the Department’s decision dated 29 September 2017 to refuse him the TPV and informed of his right to seek merits review of that decision at the Tribunal. An application for review of that decision was made to the Tribunal on 25 February 2019 and is the subject of this review.
Second Protection Visa Application (Safe Haven Enterprise Visa (SHEV)
The applicant made an application for a SHEV on 22 September 2020. As noted in paragraph 7 above, this application was invalid. However, all evidence and submissions provided by the applicant with this application have been considered by the Tribunal, as per paragraph 12 above.
In support of his application the applicant submitted the same statement dated 27 June 2017 which he previously submitted with his TPV application (paragraph 14 refers). Copies of his Vietnamese birth certificate with English translation, NSW Driver License and Immigration card were also submitted.
The applicant attended a Protection visa interview with the Department on 24 March 2021, which was conducted with the assistance of a Vietnamese interpreter. Among other things, he confirmed that he was not a member of the Viet Tan party but had ‘liked’ their [Social media] page and participated in some demonstrations organised by Viet Tan in 2017 and 2018 but not more recently due to ‘work commitments’. He provided screenshots of his [Social media] profile in the alias ‘[Alias]’.
Following the interview, the applicant’s representative ([Organisation]) provided a submission dated 7 April 2021 which stated that the applicant feared harm in Vietnam for reasons of his political opinion against the Communist Party, his Catholic religion and his membership of a particular social group of failed asylum seekers with actual and perceived links to a Western country. It also addressed matters raised at his interview and included excerpts from additional country information, including the DFAT Report on Vietnam 2019 and information regarding the arrest and action against political activists in Vietnam and the control of social media by Vietnamese authorities. A selection of the applicant’s more recent online posts was also provided as evidence of his continued political activism against the Communist regime in Vietnam.
On 12 April 2021 the delegate refused to grant the applicant a Protection (SHEV) visa as she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Evidence before the Tribunal
On 25 February 2019, the applicant applied to the Tribunal for a review of the Department’s decision of 29 September 2017 to refuse the applicant’s TPV application. A copy of the decision record was provided for the purpose of the review.
On 15 April 2021, the applicant applied to the Tribunal for a review of the Department’s decision to refuse the SHEV application. A copy of the decision record was provided for the purpose of the review.
Following delays arising from legal consideration of Ashmore or DBB16 affected case as set out in the Background section of this decision record above, the applicant appeared before the Tribunal on 22 June 2023 to give evidence and present arguments relating to the issues arising in his two applications for review. The applicant was represented in relation to the review by a new legal practitioner.
Pre-hearing Submissions

On 19 June 2023 the applicant’s representative provided to the Tribunal a submission dated 16 June 2023, setting out the background to his two protection visa applications and detailing his claims for protection, including as a Catholic, his implied Viet Tan membership, protest activities, [Social media] posts, and being a family member of a Viet Tan member. A statutory declaration from the applicant, supplementing his statement of 27 June 2017, and supporting documents were also provided.
In his statutory declaration the applicant set out his background information and elaborated on issues related to his claims, including his activities in Vietnam, namely his Catholic religion and the 2012 Con Cuong incident; his activities in Australia, in particular his political participation, Viet Tan affiliation, blogging activities and his brother-in-law’s Viet Tan membership; and the reasons he fears returning to Vietnam.
The applicant submitted that, upon his return to Vietnam, he would be detained, questioned, harassed, persecuted and tortured in prison because he is:
a.‘closely affiliated’ with the Viet Tan party, deemed illegal and blacklisted as a 'terrorist' organisation in Vietnam;
b.a [Social media] Blogger, posting and sharing articles against the Vietnamese government; and
c.a Catholic who has been involved and advocated for human rights and religious freedom among the Catholic community in Nghe An Province.
In addition to evidence previously provided, the applicant stated that he believed the Vietnamese authorities were aware of his political activities in Australia and his affiliation and ‘implied membership’ of Viet Tan due to:
a.his participation in highly publicised events and political demonstrations organised by Viet Tan and the Vietnamese Community in Australia;
b.his postings and reposting on his personal [Social media] page of materials against the Vietnamese government, including from Viet Tan; and his interactions with Viet Tan's [Social media] page. He claimed that as his [Social media] account in the alias [Alias] included his face, the Vietnamese government could track his identity.
c.his brother-in-law being an active official member of Viet Tan, in his [Social media] 's friend list and represented himself as his relative in comments, photos and interactions online
d.his being ‘pictured’ with Mr Van Kham Chau, a Vietnamese-Australian and previous Viet Tan Representative in Australia, who had been detained on his return to Vietnam in 2019 and sentenced to 12 years imprisonment on 'terrorism' charges, which he had been serving despite his old age.
Supporting documents provided included:
a.copies of media articles related to the difficulties faced by Catholics in Vietnam (March and July 2012); the proscription of Viet Tan as a terrorist organisation (October 2016); the conviction of 14 activists (9 January 2013); a UN group stating that ‘Membership of a political party cannot be grounds for arrest’ (June 2022); establishment of a 10,000-strong cyber unit in Vietnam to combat ‘wrong views’ (December 2017); and a list of ‘Prisoners of Conscience in Vietnam’.
b.Various photographs of the applicant, including with other parishioners at the Con Cuong Chapel in Vietnam; at anti-Vietnam government demonstrations and protests in Australia, including in support of religious freedom ([May] 2017), fall of Saigon demonstrations (April 2018 and April 2019), against Vietnamese foreign investment policy (11 June 2018); at [a Vietnamese Community event] in 2017 and in a group photo at Viet Tan’s [Event] in May 2018.
c.Screenshot from [Alias]’s [Social media] page (bearing profile photo of Jesus Christ) showing photographs of the applicant at anti-Vietnamese government demonstrations (2018 and 2019) and reposts from ABC regarding detention of Chau Van Kham.
d.An unsigned, undated letter from [A], representative of Viet Tan’s Sydney Chapter in support of the applicant stating that the applicant was ‘a friend of Viet Tan.’
e.A statement from Viet Tan member, [B], confirming the applicant’s participation in Viet Tan events (fundraisers, protests and candlelight vigils for Vietnamese prisoners of conscience) and stating that he often worked ‘behind the scene’ in these events.
On 22 June 2023 the applicant’s representative emailed to the Tribunal a copy of a letter from [Father C] of the [Parish] in [Suburb] stating that ‘without much personal knowledge’ of the applicant, he had ‘learnt that he has been attending our church since 2017’.
The Hearing
The applicant appeared before the Tribunal on 22 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. He presented a copy of his NSW Driver’s License for the purpose of identification.
Post hearing submission
On 30 June 2023 the applicant’s representative emailed to the Tribunal a copy of a signed letter from [A], representative of Viet Tan Sydney Chapter and a member of Viet Tan’s Executive Committee dated 28 June 2023 in support of the applicant’s application for a protection visa, stating that the applicant had been actively contributing to the Sydney Chapter in fundraising events and attending public rallies organised by Viet Tan or the Vietnamese Communities; and shared his photos online on his [Social media] page, Viet Tan website and [Social media]. He believed the Vietnamese authorities were aware of the applicant’s anti-government activities and Viet Tan affiliation as they often monitored online platforms that posted anti-government information like the Viet Tan [Social media] page.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
Based on the copy of his Vietnamese birth certificate which he provided to the Department and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a national of Vietnam and considers Vietnam is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
The applicant’s claims
Essentially the applicant claims to fear harm in Vietnam for reasons of his Catholic religion, his political opinion as an anti-Communist and Viet Tan supporter and his status as a failed asylum seeker with anti-Communist political views.
Catholic from Nghe Anh
Based on his consistent evidence throughout the course of his various Protection visa applications, the Tribunal accepts that the applicant is from a Catholic family living in Nghe Anh, a province which has a strong Catholic presence. It accepts that he may have experienced discrimination from teachers and been mistreated by non-Catholic classmates at school. The Tribunal accepts that the applicant was present at the Con Cuong church in July 2012 with his family during a violent confrontation with police and thugs, from which he ran away with minor cuts and bruises. It accepts that this incident, as well as discrimination against Catholics in employment, may have prompted him to depart Vietnam in 2013 with his sister and her husband. The applicant has not claimed, and nor is the Tribunal satisfied, that the applicant suffered serious or significant harm for reason of his Catholic religion while living in Vietnam. Given that the applicant was able to depart Vietnam without impediment on a passport in his own name, together with his sister and brother-in-law, the Tribunal is not satisfied that, at the time they left Vietnam, any of them had profiles of interests to the Vietnamese authorities.
Based on the letter from the parish priest of the [Catholic] church in [Suburb], the Tribunal is prepared to accept that the applicant has been attending the church since 2017. It is also prepared to accept, as claimed by his representative, that the applicant would still practice his Catholic faith if he returned to Vietnam. As the applicant told the Tribunal at the hearing that his parents have continued to attend the same church in [District] every week without harm, the Tribunal does not believe the applicant would face harm if he attended this or any other Catholic church on return to Vietnam. Moreover, DFAT has reported a general improvement in the situation of Catholics in Nghe An province due to the increasing strength of the Catholic community and leadership, and also in Ho Chi Minh City and Hanoi.[1] While the applicant’s employment opportunities with the atheist Vietnamese government may be limited as he will not renounce his Catholic belief, there is no evidence to suggest that Catholics are currently discriminated against in obtaining employment more broadly, including in the construction business in which the applicant has been employed in Australia.
[1] DFAT, DFAT Country Information Report Vietnam, 21 June 2017, pp.12-13
Significantly, at his Tribunal hearing, the applicant did not put forward any claims to fear harm in Vietnam relating to his Catholic faith. When asked directly if he still feared harm in Vietnam for this reason, he answered ‘no’. In view of the above, the Tribunal is not satisfied, that the applicant will suffer serious harm for reason of his Catholic faith if he returns to Vietnam now or in the reasonably foreseeable future.
Political activities in Australia
The applicant has consistently claimed that he fears persecution in Vietnam because of his anti-Communist political activities in Australia since 2016, particularly with the Viet Tan party, which the Vietnamese authorities regard as a terrorist organisation aimed at destroying the Communist regime. This has included his participation in demonstrations against the Vietnamese government and his [Social media] posts. At his hearing the applicant identified this as the main reason he now fears returning to Vietnam.
As discussed with the applicant, pursuant to s.5.J(6) of the Act, in assessing his claims, the Tribunal must disregard any conduct in which he engaged in Australia unless it is satisfied that he engaged in the conduct otherwise than for the purpose of strengthening his refugee claims. The applicant rejected the suggestion that he may have become involved in Viet Tan activities in Australia, including attending protests and posting on [Social media], in order to strengthen his protection claims. He said he shared Viet Tan’s views and political thinking and participated in their activities because he thought this was what he should do. While the Tribunal considers that the applicant may well have engaged in these activities in Australia in order to strengthen his protection claims, it does not consider that this was the sole purpose of his involvement. As a young man living in Australia away from his family for the past 10 years, involvement in these activities may have provided the applicant with an important sense of connection to the Vietnamese community, many of whom are refugees from South Vietnam and participate in events organised by the Vietnamese Community and Viet Tan, which is not identified as a terrorist organisation here. For this reason, the Tribunal has not disregarded the applicant’s conduct in Australia.
The Tribunal accepts, as claimed, that the applicant first became involved in anti-Communist political activities in Australia around 2016 or 2017 after following political developments in Vietnam on the internet and discussions with other asylum seekers and people in the Vietnamese community. Based on his evidence, witness statements from the Sydney representative of Viet Tan and another Viet Tan member and photographs provided, the Tribunal accepts that the applicant attended various demonstrations, protests and annual commemorations of the Fall of Saigon in Sydney and Canberra organised by Viet Tan and the Vietnamese Community in Australia, mainly between 2017 and 2019, though he has not been involved more recently due to ‘work commitments.’ The Tribunal accepts that the applicant sometimes held anti-Vietnam government banners and wore Viet Tan colours at protest rallies and posted photographs taken at these events on his [Social media] page. As the applicant was one among many people participating in these protest rallies, was not a leader or organiser but sometimes played a role ‘behind the scenes’, the Tribunal considers the chance of the Vietnamese authorities being aware of his participation in these events to be remote.
Although the applicant initially claimed that he ‘joined the Viet Tan party’ in 2016 (paragraph 14.i), in Department interviews (paragraphs 16 and 22) and evidence before the Tribunal, the applicant subsequently clarified that he was not a member of the party but a [Social media] follower or ‘close supporter’ of Viet Tan and was described by the Sydney Viet Tan representative as a ‘friend of Viet Tan’. At his Tribunal hearing, the applicant also elaborated that, while he shared the views and political thinking of the Viet Tan Party, there were several reasons that he was not a party member. These included not liking the way they acted and the internal conflicts within the party; and being excluded from training courses and meetings because while he did some training he did not pass the test so could not become a member. Importantly, he told the Tribunal that he did not want his father to worry about him joining the organisation as it would adversely affect his health, although he said he had not discussed this with his father.
As discussed with the applicant at the hearing, given that he left Vietnam as a teenager without a profile as an anti-government political activist and is not a member of the Viet Tan party, the Tribunal is not satisfied that he would have come to the attention of the Vietnamese authorities because of his activities with Viet Tan in Australia. It finds speculative the applicant’s claim that he will be considered as an ‘implied’ Viet Tan member, be under surveillance or on a blacklist simply because he participated in Viet Tan activities, was affiliated with or ‘hanging around’ with Viet Tan members in Australia or that he will be regarded as a Viet Tan ‘undercover member’ on return to Vietnam. The Tribunal does not accept the applicant’s new claim in his statutory declaration of 16 June 2023 that Vietnamese authorities are aware of his involvement with Viet Tan and will arrest him on return to Vietnam by association with his brother-in-law, whom he described as an ‘active official Viet Tan member’, given that his brother-in-law also left Vietnam without a profile as a political activist; or because he was ‘pictured with Mr Van Kham Chau’ in a small uncaptioned photo in a repost on the [Social media] page of [Alias].
Anti-government ‘blogger’
In his statutory declaration of 16 June 2023 the applicant introduced the new claim that he was an anti-Vietnamese government ‘[Social media] blogger’ and would be persecuted and punished for sharing articles against the Vietnamese government. Significantly, the applicant made no mention of such activity in his original statement of claims of 27 June 2017 nor at his Department interview, other than clarifying that he joined Viet Tan’s [Social media] page but was not actually a member of the party.
As for being a blogger, in discussion at his hearing the applicant clarified that he did not generate his own blogs or articles but reposted on his [Social media] page the materials of others, including Viet Tan, about human rights, religious freedom and political prisoners in Vietnam, as well as photos of events he attended. He confirmed that his [Social media] account was registered in Australia in the name of [Alias]. The Tribunal notes that the applicant has never been identified by that name in Vietnam. While he claimed that the Vietnamese authorities could identify him because his face was on his [Social media] page and his real name appeared under his nickname, the Tribunal found no evidence of this in the [Social media] screenshots he provided to the Department or the Tribunal. Moreover, in each instance the name ‘[Alias]’ appeared under profile images of a stylised moustachioed male or of Jesus Christ; and the applicant’s real name was not mentioned in either.

In his witness statement, the Viet Tan representative in Sydney posited that, as the Vietnamese authorities often monitor online platforms that post anti-state information like the Viet Tan [Social media] Page, they would be aware of the applicant’s anti-government activities and affiliation with Viet Tan because he has shared his photos there. The Tribunal is not satisfied that this is the case as the applicant confirmed at the hearing that he was never identified by name in the photos on the Viet Tan [Social media] page or website.
The Tribunal accepts that, as noted in the Reuters report provided by the applicant, the Vietnamese government has, since 2017, had a 10,000-strong cyber unit, named Force 47 monitoring social media as part of a crackdown on anti-government online activities. However, as noted in the report, the force is ‘focused largely on domestic internet users.’[2] As discussed with the applicant, given the millions[3] of [Social media] users in Vietnam, the Vietnamese authorities have very limited capacity to monitor the [Social media] activities of Vietnamese citizens overseas, particularly those who, like the applicant, have no political profile in Vietnam. In light of this, and the fact that the applicant’s [Social media] account is not registered in Vietnam, the Tribunal is not satisfied that the applicant has been monitored by the Vietnamese government or its cyber force.
[2] ‘Vietnam unveils 10,000-strong cyber unit to combat 'wrong views'’, Reuters Internet News, 27 December 2017.
[3] Estimated at 45 million, according to [News source]
Significantly, the applicant told the Tribunal at the hearing that he had stopped posting photos and Viet Tan materials on his [Social media] since 2019 or 2020. Initially, the applicant said it was because he was a shy person and did not want to promote himself or show off. However, later in the hearing he introduced a new claim that the reason he stopped posting was that in 2018 or 2019 Vietnamese Communist officials had come to tell his father that his son was ‘a national traitor’ as they had seen photos of him on social media participating in Viet Tan activities against the Vietnamese government in Australia. The applicant said that, after that, he stopped posting on social media out of fear that his activities in Australia might worry his father and adversely affect his health and because his father told him not to do it. However, he was still involved in Viet Tan activities such as fundraising and candle lighting.
The Tribunal asked the applicant several times why he had not mentioned before that Vietnamese officials had told his father about his involvement with Viet Tan. The applicant responded variously, that he may not have understood the importance of the details the Tribunal was looking into; had been too nervous to say what he actually thought and did not mention it until the Tribunal asked him about it. The Tribunal observed that he had, in fact, volunteered the information at the hearing without being asked about it by the Tribunal.
As suggested to the applicant, the Tribunal considers that, in introducing this new claim the applicant embellished his evidence in an attempt to strengthen his case. As put to the applicant, if his father had really told him the Vietnamese authorities knew about his involvement with Viet Tan, he would have said so explicitly in his recent statutory declaration to the Tribunal and his adviser might have mentioned it in her submission. Yet, he simply asserted that he was ‘sure’ the Vietnamese government was aware of his association with Viet Tan, while his representative stated that ‘it is likely’ that the authorities were aware of his criticism and public activities. Further, the applicant confirmed that nothing untoward had happened to his father: he had neither been arrested, interrogated or intimidated by the authorities but continued to live in his village and attend church. The Tribunal considers flippant the applicant’s suggestion that this was because his father was [Age] years old and that Vietnamese authorities would do not do anything to someone his age.
The Tribunal is not satisfied that Vietnamese officials came to the applicant’s parents’ house in 2018 or 2019 to tell his father that he was ‘a national traitor’ as they had seen photos of him on social media participating in Viet Tan activities against the Vietnamese government in Australia. Nor is the Tribunal satisfied that the authorities had been to his parents’ house many times since he left Vietnam, accusing him of betraying his country and protesting against the government, as he claimed to the Department (paragraph 16).
Return to Vietnam as a failed asylum seeker who departed illegally
The applicant has claimed variously that he does not know the details of his departure from Vietnam as a minor which was organised by his brother-in-law; that, while he left on his own passport, this was arranged by a people smuggler and as he left illegally, he may be considered a ‘national traitor’. As discussed with the applicant at the hearing, according to DFAT country information reports on Vietnam, including the 2019 report provided to the Department by his representative (see paragraph 23 above), on arrival in Vietnam, returnees who have employed the services of people smugglers may be questioned for a few hours on but ‘typically only face an administrative fine, including in cases of multiple illegal departures’. Being a failed asylum seeker is not generally stigmatised and the Vietnamese government ‘typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves. Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam.’[4]
[4] DFAT, DFAT Country Information Report Vietnam, 13 December 2019, pp.43-44 and 11 January 2022, p.33.
The Tribunal accepts that the applicant was affected by the ‘data breach’ in 2014, in which some of his biographical details were inadvertently disclosed on the Department website for a short period of time. Although the chance of the Vietnamese authorities accessing this information is remote, the Tribunal accepts that the applicant may be identified as a failed asylum seeker on entry to Vietnam. However, as there was no disclosure of the reasons for his detention or his protection claims in the data breach, the Tribunal is not satisfied that the Vietnamese government will know that the applicant has anti-communist political views, as claimed.
As noted above, the Tribunal does not accept that the applicant’s participation in Viet Tan or other activities against the Vietnamese government in Australia is known to the Vietnamese authorities or that he will be identified as a Viet Tan member, real or implied. The Tribunal does not, therefore accept that the applicant will be arrested at the airport, put into custody and tortured as a Viet Tan member and terrorist or that he will be suspected of returning to Vietnam as a Viet Tan ‘undercover member’ because of his involvement with Viet Tan activities in Australia, as claimed.
The Tribunal has had regard to extracts form media reports, country information and citations from previous Tribunal decisions provided by the applicant in support of his claims. However, it has not given them weight as it does not find them relevant to the specific circumstances of the applicant.
Future Conduct in Vietnam
In a discussion as to what he would do if he returned to Vietnam now, the applicant told the Tribunal that, after being involved in freedom activities over the 10 years he has lived in Australia, he would continue these activities in Vietnam and get involved in campaigns for human rights, freedom of religion and Viet Tan Party activities, which he said would land him in trouble with the authorities because there is no freedom of expression in Vietnam.
The Tribunal questions the applicant’s commitment to political activism, given his evidence that he has stopped participating in political rallies since 2019 due to ‘work commitments’. Significantly, the applicant demonstrated an apparent naivety about the severe restrictions on Viet Tan’s activities in Vietnam, telling the Tribunal that he did not know what they did there, but ‘would attend’. The Tribunal asked how he would accommodate his expressed concern to ensure that his activities did not impact on his father’s health, the applicant said he would be involved as an ‘undercover member’ and be involved in ‘behind the scenes activities’, such as preparations before and after demonstrations and fundraisers, as in Australia. He later conceded, however, that he did not know if Viet Tan held such events in Vietnam.
Considering that the applicant is not a Viet Tan member, his lack of awareness about the party’s activities in Vietnam, where it is a proscribed organisation, his lack of commitment to political activism and his concern not to cause harm to his father, the Tribunal is not satisfied that the applicant will engage in Viet Tan or significant political protest activities in Vietnam on his return, as claimed.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above as well as relevant country information, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Vietnam now or in the foreseeable future he faces a real chance of persecution by state authorities for reasons of his Catholic religion, his imputed anti-government political opinion due to his Catholic religion; his anti-government political opinion and expression of these opinions by participating in protests and online activity while in Australia; nor his membership of a particular social group of failed asylum seekers with anti-Communist views.
The Tribunal is not satisfied that the Vietnamese government will be aware of the applicant’s political activities in Australia, including that he has anti-communist political views, is ‘closely affiliated’ with the Viet Tan party, participated in anti-government protests or social media posts or regard him as a reactionary because he left Vietnam to seek asylum in Australia. The Tribunal is not satisfied that upon his return to Vietnam, the Vietnamese government will target the applicant or subject him to serious harm, including physical harmed, imprisonment or killing for these reasons; nor that he will be detained, questioned, harassed, persecuted and tortured in prison for these or any other reasons set out in s.5J(1)(a) of the Act if he returns to Vietnam now or in the foreseeable future.
Does the applicant meet the complementary protection criterion?
Having concluded that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
Notwithstanding his involvement with various activities against the Vietnamese government in Australia, mainly between 2017 and 2019, the Tribunal is not satisfied that the applicant will engage in Viet Tan or other activities that might attract the adverse attention of the authorities in Vietnam on his return there; nor that he will be a target of persecution by the government.
Accordingly, as the Tribunal does not accept that Vietnamese authorities have any adverse interest in the applicant, it does not accept that on his return to Vietnam he will face a real risk of serious harm, including being arbitrarily deprived of his life; facing the death penalty or be subjected to torture; cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not 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 he will be arbitrarily deprived of his life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Mara Moustafine
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 1137

4 January 2024

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Immigration

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Statutory Interpretation

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