1904899 (Refugee)

1904899 (Refugee) [2023] AATA 2100 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Tanya McIntyre (MARN: 1571093)
CASE NUMBER:  1904899 and 2200456
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:20 March 2023
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 20 March 2023 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – husband filed complaint and appeal about property – land dispute – corruption amongst local authorities – religion – baptised as Christian – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 9 January 2017.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant made a valid application(s) for review on 3 March 2019 and 11 January 2022.
The applicants appeared before the Tribunal on 14 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A] a family friend and the applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
There are no non-disclosure certificates on the applicant’s file.
The issue in this case is whether Australia has protection obligations with respect to the applicants. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant is [an age]-year-old woman born in [a Village in] Quynh Luu District Vietnam who came to Australia on a boat arriving in Darwin [in] April 2013. The applicant’s two children who were born in Australia are also applicants to this application, however, they rely on their mothers claims and do not have claims of their own.
The Department assessed the applicant as a national of Vietnam and the applicant and her daughters claim to be nationals of Vietnam. On this basis, and given the delegates assessment of the applicant’s claimed identity, the Tribunal accepts that the applicants are nationals of Vietnam and has assessed their protection claims accordingly.
The applicant’s claims as in her applications for protection and through her oral evidence at the Tribunal hearing are summarised as follows:
·She is a Christian.
·The government attempted to take the applicant’s family home and offered a low payment.
·The family protested and appealed the decision, but they were interrogated and threatened may times by the local authorities.
·The local government in conjunction with the police in the village stopped the applicant’s husband frequently whilst he was driving, and they wouldn’t let the applicant and her husband operate a business.
·She escaped Vietnam with her husband, and they left illegally. The authorities continue to harass her mother and daughter.
·She fears harm from the government after her personal details were leaked onto a department website.
The delegate refused the visa as they were not satisfied that the applicant was credible, and the documents provided could be fraudulent and/or they were incomplete. Before the Tribunal is a statutory declaration from the applicant dated 22 September 2020 in which she expands on her claims and evidence. The Tribunal also received a comprehensive written submission with attached newspaper articles and country information from the representative.
Tribunal Hearing
The applicant was born on [date], and she has one [sister] who currently lives in Hanoi. Her father passed away when she was [age] years old, she has a [daughter] who lives with her mother in Vietnam. She has two other children who were both born in Australia and are subject to this decision. Her husband has his own application. After completing high school, she learned to be [an occupation], but she did not like it and after a period of time she started working with her mother in a [store]. She helped her in the shop until she got married in 2004.
After she was married the applicant and her husband lived with her mother in her house in Vin city. Her husband was working in [Country 1] and was gone for approximately 2-3 years during this period of time. Eventually she opened a [business] with some friends. They opened a [showroom] and sales centre. I asked where she got the money, and she said her husband worked in [Country 2] before [Country 1] and they had saved some money. She said she had the business for about 2 years, and she owned 40% of the business and her friends owned 60%. Her husband returned around 2010 or 2011 and he started taking [the products] to other districts to sell.
I asked the applicant what happened to her and her husband to make her leave and come to Australia. She said that her mother used to be a staff person at a [store], and they had temporary accommodation for the staff. It was house number [deleted]. In 1996 the house was liquidated by the shop, and they sold the house to her mother. In 2006 the authority wanted to develop the area where the house was located, and they wanted to relocate everyone, but the compensation was not adequate. There was one person who was the head of the association and he got special treatment.
Her husband wrote a petition and many people who owned property signed it and he lodged an appeal with the authorities. After he lodged the appeal, they came and threatened her mother. They told her if he withdrew the appeal then it would be easier to survive. After that her husband started getting pulled over all the time, the police would come up with all sorts of excuses. They decided to set up a shop in her husband’s hometown but the authorities became aware that they had started another [business] and they wouldn’t approve the business and so they asked her husbands brother to put the business in his name, but he couldn’t. This is what happens in Vietnam, they set up everything and they stop them. I asked if they were able to trade at all and she said they defied the orders and setup shop anyway and they threatened us that if we stopped the appeal then we would be able to trade.
The applicant said her mother isn’t allowed to repair her own house and she has a leaky roof etc, but they stop her from repairing it. They send someone out to the house and all the repairs stop. I said that didn’t make a lot of sense and she said that it was the authorities trying to put pressure on her mother to move. The applicant said two other people that signed the petition had disappeared. Her mother still refuses to move, and she still receives threats from the authorities.
The applicant went onto describe the confusion the delegate had with the address. Her mother’s house was part of block [number] in Vin city, each row has [a number of] dwellings, and her mother’s house is number [deleted]. They reallocated the road and the house numbering system. It isn’t like here where they have a street name.
I asked the applicant about her Christianity as she didn’t provide any information about it in her submissions. She said she was baptised after she arrived in Australia and did attend church, but she hasn’t been recently. She said that in Vietnam Christianity is a very small religious faith and if she established a group she could be harassed or arrested as she betrayed the country.
I asked her about the data breach that happened in 2014 when her personal information was leaked onto a website. She said it may have happened a while ago, but it had her personal information on it and she would be arrested upon return.
The applicant summarised why she was seeking asylum in Australia. She said this is a country where human rights are a priority, and the education of her children was important. She is not a citizen, but Australia has treated them well and if she was returned, she would be arrested, and this would have an effect on her children.
The Tribunal took evidence from Mr [A] who is a friend of the family. Mr [A] had the same issue happen to him; his father had some land and the authorities wanted to have the land. To this day the land is vacant as there has been an ongoing dispute. This happens all the time in Vietnam.
After Mr [A], I took evidence from the applicant’s husband, who has a separate application but the same claims. He said eight people signed his complaint and about a fortnight later he started getting harassed. He said at first, they told him to withdraw the application and accept the level of compensation. But he refused to withdraw. A month later the authorities summonsed him to go to the government office and two other people were summonsed and they never saw them again. The government would use different tactics, they would put pressure on him and harass them psychologically. He felt unsafe and other people left the area as well. He spoke about their business and how they were unable to trade.
The applicant’s representative provided a written submission and also gave evidence orally at the end of the hearing. She said that the applicant’s claims have been consistent over the years and country information shows that land disputes are ongoing.
Country Information [1]
[1] DFAT Country Information Report Vietnam 11 January 2022
The Tribunal has considered all available country information in relation to the applicants claims for protection. They fall into three separate categories. One is the applicant’s political opinion or in this case her imputed political opinion for her husband filing a complaint and appeal about the property. The second category is about the land dispute itself and country information indicates that land disputes are a common occurrence in Vietnam and corruption amongst local authorities also plays a role. The third category is religion and the applicant having been baptised.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted. See also Online activists and Land and environmental disputes.
Land and environmental compensation disputes
3.65 Protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land and land owners allege low levels of compensation, which sometimes leads to protests. A recent prominent example was the January 2020 Dong Tam commune incident in which three police officers and a civilian were killed. The Dong Tam commune protests had been occurring for some years; protesters’ trials concluded in 2020 with some protesters receiving the death penalty and others life in prison for charges that related to the deaths of several police officers. Social media commentary on the issue later led to arrests of, and prison terms for, those commenting, demonstrating the sensitivity of the issue.
3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
3.67 It is difficult to predict when a protest will escalate or attract Government attention. As with other protests, Government action might depend on the local government authority and its priorities. Overall, DFAT assesses that land and environmental protesters face a moderate risk of official discrimination.
Land disputes have long been a major source of social conflicts in Vietnam. Apart from disputes over land ownership like the one in Dong Tam, disputes over compensation amount paid to affected residents are also common. In most of the cases, corruption makes the situation worse, as corrupted officials colluded with investors and arbitrarily grabbed land from residents at low compensation price to hand over to investors who would later resell the land at much higher prices. Even in public projects for national development purposes, the low compensation amount given to landowners also generated grievances. Large groups of landowners gathering at central offices of the CPV to demand justice has long been a common scene in Hanoi. [2]
Protestants
3.32 There are a wide-range of Protestant traditions present in Vietnam. Protestants are mostly members of ethnic minorities but Kinh Protestant communities also exist, especially in the south. Issues of religious DFAT Country Information Report VIETNAM January 2022 16 freedom and connection with land may overlap with ethnic issues. Officially registered churches that cooperate with the Government are generally able to organise and operate relatively freely and those that are engaged in political activism are likely to attract the attention of authorities.
3.33 Protestant groups can face bureaucratic difficulties. For example, gatherings might be banned on technicalities such as not having approved lists of attendees. DFAT is also aware of reports of recent examples of more serious harassment such as Protestant ministers in remote areas having assets seized or premises raided – but notes, again, that religious and political issues tend to overlap.
3.34 Registered Protestant groups experience less interference from the Government than unregistered groups. Nonetheless, DFAT understands some unregistered churches do operate. It is difficult to assess in a general way whether they have tacit approval of authorities, but some unregistered churches still operate with house church gatherings of a few people up to several hundred people. Other house churches may have a certificate of registration for prayer groups, for example for their family. The situation likely differs from place to place.
3.35 In-country sources told DFAT activities such as Protestant conferences and meetings are generally unrestricted in large cities. Efforts to expand or build churches in more remote areas can be difficult. Bureaucratic obstacles, including obtaining permits, may prevent the construction of churches or the establishment of new communities.
3.36 Conversely, Protestant house churches might provide social services with the cooperation of Government; for example, city authorities in Hanoi allowed house churches to operate drug rehabilitation services, according to the 2020 US Department of State International Religious Freedom Report. The same report also noted that Catholic and Protestant groups were sometimes reluctant to open schools or hospitals because of legal restrictions, despite the Government’s official encouragement of the opening of those services. In-country sources told DFAT of cooperation between different Protestant churches to provide food and other essentials to people during the COVID-19 pandemic. Protestant religious education is available, but again the situation may differ from place to place.
3.37 Different denominational traditions tend to have good relationships with each other while remaining largely independent. Some Protestants have relationships with churches overseas, including in Australia, and international Protestant conventions have occurred recently in Vietnam with few reports of difficulties.
3.38 The 2020 US Department of State International Religious Freedom Report notes that Protestant Christianity is growing in Vietnam. Despite some difficulties with bureaucracy, in-country sources told DFAT that efforts to evangelise and recruit new members are possible in large cities. DFAT understands that this is the case in relation to large events in which people might preach. Reports are mixed and DFAT understands that over time and in different parts of Vietnam there have been varying levels of tolerance from authorities towards evangelism.
3.39 DFAT assesses that members of registered Protestant churches face a low risk of official discrimination or harassment in relation to their faith. Adherents of unregistered Protestant churches face a moderate risk of official discrimination if they are engaged in political expression, protests or criticism of the Government (in which case see Political Opinion (Actual or imputed)). In-country sources told DFAT that Protestants experience little societal discrimination, especially in cities. The situation is different in small rural communities, where societal discrimination might be more prevalent but would differ from community to community.
[2] "Deadly Clash Brings Vietnam's Land Disputes into the Spotlight" by Le Hong Hiep - ISEAS-Yusof Ishak Institute
Findings

The Tribunal accepts the applicant’s claims about her background, her family, her education and her work background. The Tribunal further accepts that the applicant came to Australia on a boat and spent over 18 months in detention. The applicant was spontaneous and open when giving evidence and explained exactly what happened with her family property, her business and her fears.
The Tribunal accepts that the applicant left Vietnam over ten years ago. Yet her claims for protection have stayed the same throughout the process over the ten years. The Tribunal considers that her husband’s actions by filing an appeal with the authorities gave the applicant an imputed political opinion by going against the government. The applicant was able to detail the problems she and her husband faced and was able to provide documents to back up her claims of ongoing land issues.
The Tribunal also accepts that the applicant became a Christian when she arrived in Australia and that she was baptised. She did state she doesn’t attend church regularly but that is because she is working and has children. The Tribunal gives this lesser weight but it is still a factor in the applicant’s decision.
The Tribunal also finds that country information confirms that land disputes arise in Vietnam frequently and persistently.
The Tribunal has gone on to consider that the assessment of protection is a forward-looking assessment, what would happen to the applicant on her return to Vietnam. Past experience is only one aspect of the consideration. The applicant fears that she will be recognised upon arrival in Vietnam for the land dispute and for being a failed asylum seeker who left the country illegally via a boat without documentation. DFAT states the following: [3]
[3] Ibid (page 33)
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.
The Tribunal finds it would be extremely difficult for the applicant to be able to reacclimate into Vietnamese society after having been gone for so long, having left without any documentation and having a profile.
Relocation within Vietnam for the applicant would be very difficult and given that the applicant fears harm from the authorities, and as they exist nationally, she would not be able to relocate to avoid the harm she fears in her home area.
The Tribunal has also gone onto consider whether the applicant can avail herself of state protection. The actors who are causing harm are state actors and the Tribunal considers that the applicant cannot avail herself of state protection.
The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from her imputed political opinion, her religion and as a failed asylum seeker. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s children are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Nora Lamont
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.
…

[2023] AATA 2100

20 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Appeal