1906027 (Refugee)

1906027 (Refugee) [2019] AATA 6729 (14 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906027
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Michael Hawkins
DATE:14 November 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 14 November 2019 at 9:30am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Roman Catholicism – particular social group – returning failed asylum seeker – human trafficking – unaccompanied minor – recruited from orphanage to work in cannabis cultivation – destroyed passport on boat – contacted by traffickers in detention centre – absconded and worked unlawfully – country information – effective protection measures – complementary protection – fear of harm from traffickers – real risk of significant harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91WA, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 17 October 2018. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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 (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 issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter be remitted for consideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Background:
The applicant is a [age] year old man from the village of [Village 1], Ba Ria-Vung province, Vietnam.
The applicant is of the Christian Catholic faith, is of Vietnamese ethnicity and speaks Vietnamese.
The applicant is single.
He was raised in two orphanages and provided no details of family members.
At the time of his arrival he was assessed as an unaccompanied minor under 18 years of age, and his claimed name and date of birth were accepted.
The applicant departed Vietnam legally by plane and travelled to [Country 1]. From [Country 1], he travelled to, and arrived in, Australia by boat without valid identity documents [in] April 2013.
The applicant was placed in community detention in Queensland.
[In] February 2014 the community detention service provider advised that the applicant had absconded.
The applicant was located in North Queensland [in] June 2018 by departmental officers and detained.
The applicant applied for a Safe Haven Enterprise (subclass 790) visa on 17 October 2018.
Claims
The applicant’s claims have been summarised from a statement dated 22 May 2019.
The applicant claims he was born in Ba Rai-Vung Tau Province in Vietnam. He claims to have lived in two orphanages Vietnam. The first one he lived in was until he was about 11 or 12 years old. The second orphanage was [Orphanage 1].
The applicant claims he is a Catholic.
The applicant claims he was sent to Australia by people in [Orphanage 1] to work to raise money for them.
The applicant claims he was baptised in Vietnam. He claims he knows this as one of the sisters at the first orphanage had confirmed this and his Christian name was [Vietnamese Name], which is [English Name] in English. He claim the sisters at the orphanage used to teach him how to communicate with God and how to attend Mass and Catholic celebrations.
The applicant claims that religion is very important to him, but he does not know if he would be able to practice it back in Vietnam. He claims he would be restricted because the Communist Party does not condone Catholicism. He claims he would not be free to attend church if he returned to Vietnam.
The applicant claims to fear harm from the people who took him from [Orphanage 1]. He claims that if he returns to Vietnam, they will find him again and force him to do illegal activities or would sell him. He claims there is a huge black market in Vietnam for organs. He claims that he has read that in Vietnam people are kidnapped for the purpose of selling organs.
The applicant claims he cannot relocate to another part of Vietnam. He claims he grew up dependent on [Orphanage 1] and does not have any other family or friends who could help him. He claims that having connections is vital in Vietnam for survival as local authorities cannot be trusted. He claims he has no money or power to stand up to corruption. He claims that as he grew up in an orphanage, he has no skills that would allow him to survive on his own.
The applicant claims that he fears he would be charged with treason and will be imprisoned as a failed refugee.
Post-Interview Submission
On 8 March 2019, the Delegate received a submission from the applicant’s Registered Migration Agent.
The submission identified a number of risk factors and vulnerabilities for the applicant if he were to return to Vietnam. The submission identified possible types of harm that the applicant may face as a result of these vulnerabilities. The submission stated that the applicant faces harm from the people who trafficked him to Australia, as well as from the Vietnamese authorities. The submission states that the applicant has stated in his claims and at interview that he was involved in illegal activities for a short time in Australia (growing cannabis) before running away. The submission states that if the applicant, being involved in such illegal activities, were to become known to the Vietnamese authorities during any questioning he may receive on return, he could face prosecution for this reason in Vietnam.
The submission states he faces a real chance of being re-trafficked if he returns to Vietnam, due to his identified vulnerabilities, as well as a risk of facing retribution from the traffickers for running away, who will wish to pursue the applicant’s “debt” to the traffickers. As he does not know who the people who trafficked him are, however, they are aware of his identity, he would not be able to avoid them. The submission states the risk of being re-trafficked due to his lack of familial support in Vietnam, and due to the lack of resources in Vietnam to support male trafficking victims, as well as social stigma. The submission comments that due to the applicant’s background, he would face significant issues reintegrating to society in Vietnam.
The submission referenced the 2006 UNHCR Guidelines on the Application of Refugee Law to Victims of Trafficking and Persons at risk of being trafficked, as well as an Office of the UN High Commissioner for Human Rights on the issue of human trafficking.
The submission contained Country Information from a range of sources regarding the issue of people trafficking in Vietnam.
The submission also included summaries of Country Information on the situation for Catholics in Vietnam.
The submission contends that notwithstanding any Section 36(2)(A) issues, the applicant’s claims would also meet the criteria under Australia’s Complimentary Protection provisions. The submission cites parts of Article 8 of the International Convention of Civil and Political Rights related to slavery, forced servitude and compulsory labour.
The submission finally states that considering the evidence, the applicant cannot relocate within Vietnam to escape the harm feared from either the traffickers or the Vietnamese authorities.
Pre-Hearing Submission
The Tribunal received a pre-hearing submission from the applicant’s new Representatives on 10 October 2019.
The Representative submitted as follows:
·The applicant believes that the Interpreter at his SHEV interview did not properly represent what he had said, and significant omissions were made. He did not raise this issue during the interviews as he was nervous, and worried that it may have an adverse impact on his case.
·The decision was made the next business day after the interview, which in our respectful submission, did not give the Delegate sufficient time to consider the evidence presented in the interview. We would like to bring your attention to the following:
oThe assessment of the applicant’s claims that he would be targeted by the trafficking syndicate if he returns to Vietnam was inadequate. The Delegate relied on a number of untested assumptions in reaching his conclusion, including that because he was a man, the applicant would no longer be in danger and he would no longer be of interest to the syndicate. The Delegate also concluded that there was no evidence that indicated that the applicant owed money to the syndicate. With respect, the fact that the syndicate paid for the applicant’s travel to Australia in order to work for the syndicate and then did not work for them clearly indicates there is a debt owed. In addition, the syndicate persisted in contacting him despite him being in the custody of the Australian authorities. We suggest that the syndicate still has a high interest in him.
oThe Delegate stated that the applicant has the necessary street smarts and that “effective state protection is likely to be available”. However, we respectfully submit that in the previous page of the same report, these protection centres have been reported to lack appropriately trained personnel to assist victims.
oThe Delegate accepted that the applicant may be detained for a short period of time if he is made to return to Vietnam for identity checks. We respectfully submit that this process would still represent significant harm to the applicant because, according to DFAT Country Report, there have been at least 2,812 deaths of people in custody between 1 July 2011 and 30 June 2016, an alarming number amounting to more than three deaths every two days. These prisons also lack quality food, water and sanitation. Deaths by lethal force by authorities have also been reported. We would also like to draw your attention that the detention period is unlikely to be swift because the applicant is no longer in possession of a Vietnamese passport, and the nature of his deportation from Australia would be thoroughly investigated. The applicant is also concerned about being interrogated by Vietnamese officials seeking the identity of his traffickers. Even if he genuinely does not know their identity, he may be viewed as a complicit party of the syndicate.
Evidence:
This Tribunal has before it a range of material, including, relevantly:
·The applicant’s Safe Haven Enterprise (subclass 790) visa application form lodged on 17 October 2018 (“visa application”);
·The Safe Haven Enterprise (subclass 790) visa decision record (‘delegate’s decision record’) of 11 March 2019;
·The review application form which included a copy of the delegate’s decision record;
·Statement of the applicant dated 22 February 2019;
·Letter of Support from Father [A] dated 27 February 2019;
·Supplementary Statement of applicant dated 28 February 2019;
·Submissions from the applicant’s representative dated 10 October 2019;
·Interview with the delegate dated 1 March 2019;
·Post Hearing submissions from the applicant’s representative dated 1 November 2019;
·Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Vietnam, published on 21 June 2017.
Country of reference / receiving country
The applicant claims to be a Vietnamese national. Based on the findings of the Department of Immigration and Border Protection (the Department) in relation to the applicant, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended the hearing on 14 October 2019 and again on 25 October 2019. The applicant was represented on both occasions; however, the Representative was not present for the hearing on 14 October 2019. The hearing was conducted with the assistance of an Interpreter in the Vietnamese and English languages on both occasions.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Safe Haven Enterprise (subclass 790) visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Vietnam. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he is returned to Vietnam. The harm must be directed at him for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Vietnam.
The Tribunal confirmed that the applicant arrived in Australia [in] April 2013.
The Tribunal confirmed the background of the applicant as set out above.
s.438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held in the documents titled “[File number] – [Name] boat intel report – NON DISCLOSABLE” of the department file would be contrary to the public interest because it contains information which was provided to the Department in confidence.
A copy of the Certificate was provided to the applicant and to the applicant’s representative at the hearing.
The Tribunal has considered the material identified in the certificate and considers the certificate is valid. It explained that the report.
The Tribunal asked the applicant whether he had any comment to make in relation to the s.438 Notice. The representative advised that it was satisfactory.
The Tribunal read to the applicant his claims set out in paragraphs 20 to 28 above. The Tribunal asked the applicant whether his claims were accurate and were complete. The applicant confirmed that the claims were accurate and added that whilst it is true that there is freedom of religion, the Communist Party is oppressing Catholicism. He confirmed that his claims as stated were complete.
The Tribunal explained to the applicant that it would like to better understand the applicant’s background and asked the applicant to tell it about his life from when he was a young boy.
The applicant replied that he doesn’t know when he was born. He went on to explain that his earliest memory was at an orphanage where he stayed until he was 11 or 12 years old. He recalls fondly being looked after by two women whom he referred to as his “mothers”.
He stated that when he turned 11 or 12, he was required to move to a new orphanage. His mothers told him that the new orphanage would be roomier and there would be more toys for him. He recalls crying a lot, but his mothers told him to pray. He remembers that his mothers gave him love and religion.
He claims, however, that life changed for him at the second orphanage. He stated that people didn’t love him like his mothers did. He said he wasn’t treated equally to how others were treated. When asked why, he explained that when he was transferred, his mothers said to him to look up to God, but the new orphanage didn’t want him to pray to God, but to follow the Communist Party. He stated that he was assaulted many times and was told that he could not go to church, but he stated that he ignored those demands and went to church and was duly punished.

The applicant also discussed a tattoo of a cross that he [had] and that when it was discovered, the people of the orphanage burned it off using cigarettes.
The Tribunal noted the extensive research undertaken by the Delegate in proving the existence of the second orphanage. The Tribunal undertook a quick search of the orphanage as identified by the Delegate and confirmed that it largely affirmed the description provided by the applicant of it.
The Tribunal discussed with the applicant a concern it had about his mothers, who appeared to operate a Catholic orphanage, sending a child to the second orphanage which, by the applicant’s description, was not a Catholic orphanage, but an orphanage run by the state. It asked the applicant why the mothers would do that to him. The applicant replied that he simply doesn’t know. He recalls being told that it would be better for him being bigger and more people there, but he was otherwise too young to understand.
The Tribunal discussed with the applicant the forms of punishment he used to receive. The applicant was satisfied that he was generally only punished because he prayed to God and went to church without approval.
The Tribunal then discussed with the applicant what events transpired when he turned [age].
The applicant replied that when children in the orphanage reached [age], the orphanage would usually try and get them a job. It was clear to him that you weren’t able to stay in the orphanage for life. You were required to go and find a job and to look after themselves.
He recalls that when he was about [age], a group of people came into the orphanage and asked him whether he would like to work. He states that he readily agreed. He was told that he could go to Australia to work and to work in a cannabis house. He stated that he felt happy and lucky as cannabis in Vietnam helps people - it is like a medicine. He told the Tribunal that he was pleased that someone offered him a job and he was pleased to leave the orphanage.
The Tribunal asked the applicant about the people who came to the orphanage to talk to him. It enquired whether he knew whether those people were authorised by the orphanage or whether they were strangers. He stated that all he can remember is that an employee of the orphanage brought the people to him. He does not know whether the orphanage arranged for these people to meet him or whether the person who introduced them to him simply met them at the door and brought them to him.
The Tribunal explained that it was concerned that this orphanage, given that it was backed as an NGO and received funding from many foreign countries, including Australia, would be involved in shifting children from Vietnam to Australia to participate in cannabis houses.
The applicant replied that he did not know anything about that. He went on to add that he did not know anything about Australia either, he was just excited to be offered a job and to be able to leave the orphanage centre. He went on to explain that he felt that his position was much better than the alternative of having to leave the orphanage without a job and having no future.
The Tribunal asked the applicant about his life at the second orphanage. He replied that he attended school whilst at the orphanage and from time to time on weekends sold [items] for the benefit of the orphanage.
The Tribunal asked the applicant about whether he maintained contact with the two mothers. He replied that at first the mothers kept in contact with him, asking him how he was going. But over time their contact became less and less until there was no contact at all. He stated to the Tribunal that he wishes he knew where they were so that he could make contact with them, but has no way of finding them.
The Tribunal then asked the applicant about the particular day that the group of people came to talk to him about moving to Australia. The applicant replied that there were three people who met him in the centre and there was one driver outside. The Tribunal asked the applicant how he knew about the driver. The applicant replied that as soon as he agreed to go with them, they left virtually immediately, allowing him time to pack and to very quickly say goodbye to some of the people there. He said it was all very fast.
The Tribunal asked what happened after that. The applicant replied that they travelled by car to Saigon and he stayed overnight in a hotel. The next day they left from Saigon Airport to travel to [Country 1].
The Tribunal asked the applicant how he managed to get through the airport in Saigon, asking him what identity documents he had.
The applicant replied that the people gave him identity documents and a plane ticket, which he assumed included a passport.
The Tribunal reminded the applicant that he had told the Delegate that he had a passport and that the passport had the correct photo, name and date of birth. The Tribunal asked the applicant how the passport could have included his photo.
The applicant replied that he had wondered about that himself as he cannot recall anyone taking a photo of him. He believes that the group got his photo from the orphanage as he felt it was a photo that had been taken some time earlier.
The Tribunal asked the applicant whether he had experienced any issues passing through security in Saigon. He replied that he did not. The Tribunal suggested that he may have had a valid passport, however obtained. The applicant replied that he really didn’t know, but he didn’t have any problems.
The Tribunal noted Country Information from the DFAT Report in relation to the prevalence of fraudulently created documents, noting that a passport may have been obtained for the applicant without his knowledge.
The Tribunal discussed with the applicant his journey to [Country 1].
The applicant stated that he took a flight from Saigon to [Country 1]. He stated that he spent four days in [Country 1] living in the house of an [Occupation 1].
The applicant stated that on the fifth day, he was driven to the seaside to catch a boat. He specifically recalls there being lots of people and some carrying guns. He said he was scared by the whole experience and it is something that he will never forget.
He stated that he was given very specific instructions as to what he was to do and say when he arrived in Australia. He stated that men, with guns to his and others’ heads, were told that they were not to mention anything about the people smugglers, was not to say anything about where he came from and was only to say that he was coming to Australia for better work opportunities.
The applicant said that he was put aboard a small boat and then taken out to the big boat. The Tribunal asked how many passengers were aboard the big boat. The applicant stated that at the time he had no idea as he was put on the boat and pretty much stayed in one spot. He also stated that he was very seasick and not terribly aware of his circumstances. He stated that when he arrived in Australia, he was subsequently told that there were 84 passengers onboard.
The Tribunal asked the applicant about the boat operators. The applicant stated that he did remember them and they were [a Country 1] father and son.
The Tribunal reminded the applicant about the entry interviews of all of the passengers that it had seen but which, pursuant to s. 438 of the Act, were required not to be disclosed. The Tribunal reminded the applicant that it had given him an outline of what those documents were and reminded the applicant that if the Tribunal was to refer to them, it would do so by specifically advising the applicant of the information it was relying upon. The Tribunal put to the applicant that the consensus of the passengers on the boat was that the boat operator, the father and son, were friendly and didn’t threaten them, but also jumped off the boat at the appearance of the Australian Navy.
The applicant replied that he definitely remembered all of that and particularly the father and son jumping off the boat. He said that when they jumped off the boat, the boat went round and round and everyone was screaming and were terrified. He remembers a woman screaming that she was going to die.
The applicant agreed that he was not aware of the father and son harming anyone on the boat and that everyone on the boat was fed. He recalls being on the boat for about six days and was sure that they were rescued on the seventh day. He recalls having two meals on the boat before he succumbed to seasickness and claims that thereafter he was so sick he was not aware of much going on around him at all.
The Tribunal asked the applicant what he expected would happen when he arrived in Australia. That is, before he left [Country 1] or was on the boat, what did he expect at the other end. He replied that he really didn’t know. He said he was sick and scared. He said he just did as he was told and hoped he would be looked after.
He restated that the organisers of his trip had given him very clear instructions as to what he could and could not say. He was not to say that he was coming to Australia to grow cannabis. He claims that he was told very clearly that if he ended up back in Vietnam, he would be killed.
The Tribunal reminded the applicant that he had told the Delegate that he had thrown his passport overboard. The applicant replied that that was what he had done. The Tribunal asked could he remember when he did that. He replied that he thought it was on either the second or the third day, when everyone else did it.
The Tribunal asked the applicant why he threw his passport overboard. He replied that he had been told to throw it overboard when they hit the high seas.
The Tribunal then advised the applicant and his Representative that the Tribunal was now required to consider whether there were circumstances that might prevent the grant of the Visa.
The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he disposed of or destroyed an identity document.
Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant: first, has a reasonable explanation for the provision, destruction or disposal; and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act. Section 91WA is extracted in the attachment to this decision.
The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date,[1] including this application.
[1] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015
Did the applicant dispose of or destroy documentary evidence of his identity?
The applicant gave evidence confirming that he had destroyed his passport. His evidence was consistent with what he had told the interviewer on entry and again with what he had stated in his Protection Visa Application form.
Having considered all of the evidence the Tribunal finds that the applicant caused the destruction or disposal of his passport being documentary evidence of his identity, nationality or citizenship.
Does the applicant have a reasonable explanation for disposing of documentary evidence of his identity?
The Tribunal asked the applicant whether he had an explanation for disposing or destroying or causing the disposal or destruction of his passport.
The Tribunal then discussed with the applicant that it was only necessary for the purpose of this review and the requirement of the provision for this Tribunal to find that there was not a reasonable explanation as to why he did destroy his passport.
There are many explanations tendered by people in similar situations to the applicant as to why they destroyed or disposed of their passports. Such explanations have included:
·that the people smugglers made them destroy them;
·that they were fearful for their lives or safety if they didn’t follow the commands of the people smugglers;
·that everyone else was disposing of their passports;
·that their passports were confiscated;
·that they panicked when they saw the Navy.
The Tribunal is aware that according to a number of articles, it is "well known that agents or 'people smugglers' who arrange unauthorised passage for refugees will confiscate or order identity papers destroyed".[2] This could be for a number of reasons but likely because the people smugglers "who want to ensure there is no paper trail that might lead authorities to their eventual arrest".
It is also stated by the Refugee Advice & Casework Service ("RACS") that:
People smugglers may confiscate documents or require people to destroy their documents In order to protect smuggling networks. In circumstances in which documents are retained by smugglers, the asylum seeker may be instructed by the people smuggler to tell Australian officials that the asylum seeker discarded the document.[3]
[2] Jay Fletcher, "Busting three asylum seeker myths", Greenieft Weekly (online) 11 July 2013 < Refugee Action Coalition, Why Do Asylum Seekers Destroy Their Passports? (.d.) < Refugee Advice & casework Service, Migration Amendment (Protection and Other Measures) Bill 2014 Submission by the Refugee Advice & Casework Service (Aust) Inc. (4 August 2014) page 10 < The Tribunal noted that in the applicant’s situation, there were no smugglers on the boat, no guns, no policemen. The father and son operated the boat and by all accounts were friendly and provided food and support. Why then was it reasonable for the applicant to have thrown his passport overboard?
101. The applicant replied that he was told by the organisers that if he didn’t throw his passport overboard, and Australian Immigration caught him, then he would be sent home, as his address was on his passport. He restated that he was under 18 years of age and was terrified about everything that was happening. He told the Tribunal that he did everything that the organisers told him to do, including providing the address that he was given and told to state as his own address. He reminded the Tribunal that he had admitted to the authorities that the information he gave at his entry interview was incorrect.
102. The Tribunal invited the Representative to offer a submission.
103. The Representative implored the Tribunal to understand the whole picture of the people who brought the applicant to Australia. She reminded the Tribunal that the applicant had been plucked from an orphanage, most likely by an opportunistic employee scouting for people traffickers. She noted the same day departure from the orphanage and Saigon, rather than any vetting of candidates, suggesting the criminality of the people involved. She reminded the Tribunal that the applicant’s passport was evidently already prepared and she speculated aloud as to whether the applicant even had a choice as to whether to accept the offer of employment in Australia. She spoke of the scene at the waterfront with lots of people, guns and confusion and spoke of the indelible impact upon the applicant. She stated that such a use of force suggests there was no choice.
104. The Representative reiterated that the people involved are traffickers, not just smugglers. Coupled with the understanding that the applicant had that he was being put up in the home of [a Country 1] [Occupation 1], she asked the Tribunal to consider all of the circumstances cumulatively against a backdrop of a young boy who grew up in an orphanage and who was not yet an adult.
105. She stated that one could then understand his fear and why he did as he was told, including throwing his passport overboard and why he told the officials what he did at the entry interview. She concluded by submitting that the applicant’s throwing of his passport into the water was completely reasonable.
106. The Tribunal speculated as to why the traffickers or organisers did not simply confiscate the passports before all of the passengers got onto the boat, to which there was obviously no response.
107. The Tribunal discussed the contents of the applicant’s arrival interview with him.
108. The Tribunal noted that at his arrival interview, he stated he was poor and had to leave. He had said that he had worked [at a specified job] and could not earn enough money to live. However, he stated he had earned enough money to pay for his trip to Australia. He said that he had heard from other people that if he returned to Vietnam, the Communists would beat him to death.
109. He stated at the arrival interview that he was Catholic and advised that he was told by people from the Communist Party when he lived in the orphanage that he ought abandon his religion. He said he was not fed, that he was beaten and he was not permitted to practice his religion. He said he escaped with a friend.
110. He said that he met someone who could arrange for him to travel to Australia and that he paid [amount] Vietnamese Dong (approximately AUD$[amount]) to this man and departed Vietnam by boat.
111. The applicant admitted that much of that information was incorrect.
112. The Tribunal asked the applicant whether he had made any payment for his ticket to Australia. He replied that he had made no payment, that it had all been arranged by the organiser.
113. The Tribunal asked about the other people on the boat and whether they were on the boat for different reasons. The applicant replied that he was sick on the boat and tended to not talk to strangers. He really didn’t know why the other people were on the boat or what they were escaping from. There were not any others from his orphanage on the boat.
114. The Tribunal asked the applicant why he said what he did at the arrival interview. The applicant replied that he was scared and was doing what he was told to do.
115. The Representative agreed that her submission in relation to the tossing of his passport overboard applied equally as an explanation for what was said at the arrival interview.
116. The Tribunal discussed with the applicant his practice of Catholicism in Australia. It asked how he practised his religion while he was in Australia. The applicant replied that he would pray every day and attend church every week where it was possible and when he didn’t have other commitments, for example to work.
117. He volunteered that the Priest from the church he attended in [City 1] refused to write a reference for him. He noted his disappointment at that and the Tribunal noted its surprise at that.
118. The Tribunal noted the evidence provided to the Delegate wherein the applicant could not recall the name of the church but had been able to provide geographic characteristics to satisfy the Delegate of the existence of the church that he attended.
119. The Tribunal asked the applicant about the form of his detention. He replied that when he was transferred to Brisbane, he lived in a share house with five other youth detainees. He spoke of requiring a chaperone whenever he went out.

120. The Tribunal asked the applicant about whether he performed any work whilst he was in detention. He replied that whilst he was in the share house in Brisbane, he did not work. The Tribunal asked the applicant about working in the cannabis house. He replied that he never worked in the cannabis house.
121. The Tribunal noted his Representative’s previous submission that he had worked in the cannabis house for a short period performing illegal duties and that that would have an impact on him if he had to return to Vietnam. The applicant replied categorically that he had never worked in the cannabis house. The Tribunal noted this was consistent with what he had told the Delegate and notwithstanding his Representative’s submission.
122. The Tribunal asked the applicant why he didn’t work in the cannabis house, noting his change of attitude from when he was in Vietnam. He replied that he had attended confession at church and had told the Priest what he was going to do for work. He claims that the Priest told him that working in a cannabis house was illegal and that he would be hurting others.
123. The Tribunal asked the applicant how the traffickers made contact with him. The applicant replied that to this day he still does not know how they got his telephone number. He stated that when he was released into house detention, he received a sum of money from the government and bought himself a new phone. Sometime later, the traffickers telephoned him on that mobile number. He claims he told the traffickers that he still had a chaperone and was unable to meet them. He claims that he told the traffickers that he would ask the chaperone if he could leave the chaperone and meet with them to make arrangements to meet.
124. It was after that telephone discussion that he went to the church and to confession and learned from the Priest that he must not work in the cannabis house.
125. The applicant claims that he then decided to run away. He claims he left the share house with one of his housemates and went to [City 2]. He claims they stayed in [City 2] for about a month, but as his friend was bossing him around and making him do all the work, he decided to go his own way and headed [to City 1]. He stated that that was where he was eventually caught.
126. He stated that he worked [in a workplace] outside of [City 1] and felt like he was a member of the family that he was working for. The family remain in contact with him while he has been in detention.
127. The applicant also stated that he was paid and allowed to have holidays and that he went to Melbourne for a holiday where he met a girl. He stated that he has been with this girl for 2½ years and that she is an Australian citizen.
128. The Tribunal explained to the applicant that it now needed to discuss some Country Information with him in relation to Catholicism in Vietnam and the treatment of failed asylum seekers upon return.[4]
3.9 Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
3.10 DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.
3.11 Credible in-country contacts and human rights advocates reported that several parishes in remote areas with majority ethnic minority congregations faced difficulty registering churches. Local authorities often ignored, or were unaware of, national laws with respect to church registration. The US Department of State’s international religious freedom report for 2015 reported the case of 22 unregistered Catholic house churches scheduled for demolition in the Central Highlands province of Kon Tum in 2015. The demolition was halted following involvement by the church leadership, after which authorities and the church entered into dialogue regarding construction of new worship facilities.
3.12 In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.
3.13 DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion.
[4] DFAT Report, paragraphs 3.9 – 3.13

129. The Tribunal noted the provisions of the DFAT Report relating to returning failed asylum seekers and discussed extracts of the following with the applicant.
Treatment of Returnees:
5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
5.16 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
5.17 DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the Government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.
Conditions for Returnees
5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.
5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.

Post-hearing Submission
130. On 4 November 2019 Tribunal received post-hearing submissions from the applicant’s Representative dated 1 November 2019 which are as follows:
Background Facts
1.    The Applicant fears harm at the hands of those who were involved in his trafficking to Australia. He was brought to Australia by his traffickers to work on a cannabis farm. The costs of his journey were borne completely by his traffickers.
2.    The Applicant had never commenced work for his traffickers as the boat he was traveling on was intercepted by the Australian Navy. The Applicant was then put into detention.
3.    After his release from detention, the Applicant purchased a new mobile phone and kept a low profile. Despite that, his traffickers managed to track down his contact details and contacted him to make arrangements to re-commence his work at the cannabis farm.
4.    At that time, as an unaccompanied minor, the Applicant had a service assisting him, which included accompanying him to appointments etc. He told his traffickers that he would be in touch once he was alone and had the opportunity.
5.    At this point he attended church and during confessional was advised by the priest that what he was planning to do was illegal. Having realised the illegality of his proposed work at the cannabis farm, the Applicant avoided contact with his traffickers.
6.    He destroyed the phone that he had contacted them on, and left Brisbane for [City 2] to avoid them. He was able to do this until he was re-detained.
7.    As a result, he is fearful of retribution from the traffickers. He describes menacing scenes where he was instructed at gun point what he must do (work for them and tell authorities a prepared script) and what he must not do (give information about his traffickers).
8.    He has not followed their directions and as a result he fears suffering serious harm in the form of retribution. He also fears that they will force him back into servitude, to pay his debt.
Complementary Protection
Section 36(2)(aa) of the Migration Act 1958 provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia 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.
Section 36(2)(aa) of the Migration Act 1958 provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia 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.
The threshold of real risk is the same as the 'real chance' test in the refugee criterion in s.36(2)(a) and has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 percent chance¹. ^{.1 Chan v MIEA}^{(1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559)}
We submit that the Applicant would face significant harm of being arbitrarily deprived of his life or subjected to cruel or inhumane treatment or punishment, in the form of retribution from those that trafficked him. This is because despite the period of time that has elapsed since he left Vietnam, there are strong indications that he would be vulnerable and identifiable. The group that trafficked him
• Invested a substantial amount in getting him to Australia
• Tracked him when he arrived and were able to contact him 6 months after he arrived.
• Have extensive networks which include law enforcement officers in countries other than Vietnam.
Furthermore, we submit that despite the Applicant being older, he is still extremely vulnerable because
• He grew up in an orphanage, and has little or no experience outside its walls, resulting in a lack of life skills necessary to survive in Vietnam
• He has no family support and has lost touch with the nuns who first raised him
• He is a devote Catholic, which draws attention and subjects him to discrimination and isolation
• He is a returning asylum seeker, which further draws attention and isolates him; and
• He has spent his formative years in Australia; arriving as a young man of [age], and would struggle to fit back into Vietnamese society

More will be said on the interaction of these factors below in Cumulative Claim.
In our submission, the risk of retribution from the people who trafficked the Applicant remains a real risk. Even if they have not managed to track the Applicant, and are therefore unaware of his return, a young man in his circumstances would attract attention immediately on return. It is therefore likely that the traffickers would also become aware of his return and therefore be able to target him.
There is evidence that indicates that gangs are well organised and spend resources 'tracking down' victims that have sought assistance from authorities. A 2017 report written by the Independent Anti-slavery Commissioner found that
Vietnamese children who are rescued from slavery in Britain are at high risk of going missing from care and falling back into the hands of gang masters ²
²The full report can be found at htt ps:/ / ommissio ner.co.uk/media/ 1159/iasc-repo rt -combating -modern slave ry-experience-by-vietna me-nationals-en-route-to -and -within-the-uk.pd)
While this report refers to the UK, it is clear that if they are prepared to take such action in foreign countries, they would be more willing and able to take such action within Vietnam where their networks are the strongest.
According to the United Nations High Commissioner for Refugees Guidelines, the victim's cooperation with the authorities in the country of asylum or the country of origin in investigations may give rise to a risk of harm from the traffickers upon return, particularly if the trafficking has been perpetrated by international trafficking networks. ³
Therefore, it is our submission that despite the delay and the current age of the Applicant, he is still at a real risk of retribution from those that trafficked him.
Risk of re-trafficking
The UK Home Office have noted that returned victims of trafficking may be at risk of re trafficking or reprisals ⁴ with the following risk factors:
• The person having an outstanding debt to the traffickers
•The absence of a supportive family willing to take the victim back into the family unit
•The person having no other support network to assist them; no or little education or vocational skills; mental health conditions, which may well have been caused by experiences of abuse when originally trafficked; material and financial deprivation such as to mean that they will be living in poverty or in conditions of destitution.

Outstanding debt
The Tribunal accepted the evidence that the Applicant's journey to Australia was wholly financed by his traffickers on the basis that he would be working for them on the cannabis farm. However, he never commenced work for his traffickers, and as such, now owes a debt to them. Despite him maintaining a low profile after being released from detention, his traffickers were still able to contact the Applicant with the intention of him re-commencing work at the cannabis farm. We submit that because the traffickers have yet to see a return on their investment in bringing him to Australia, they would not only consider that the Applicant owes them a debt, but they would also be seeking to enforce that very debt
Absence of a supportive family
As an orphan, the Applicant would have no familial support to return to. He has lost all contact with the two women he considers as 'mothers' and has not heard from them for years. He would be returning to a country in which he does not know anyone and into a community that he has never truly integrated into. His evidence to the Tribunal was that when he lived in Vietnam, he did not venture out of the orphanage.
^3._{UNHCR, ' Guidelines on international protection: The application of Article 1A{2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked' (7 April 2006), available at: at 7.}
⁴_{UK Home Office , Country Policy and Information Note - Vietnam : Victims of trafficking' (September 2018), available at: v3.0Sep -2018.pdf, at [2.4.4].}
Lack of skills and support network
The Applicant does not possess an educational or vocational qualification and received only an informal education up until Year [Number] level at the orphanage. He has worked as a [Occupation 2] and as a [Occupation 3]. While in Vietnam he worked at the direction of the Orphanage, which had complete control over his life and made all life decision for him. In addition, having spent his formative years into adulthood in Australia the Applicant would lack the cultural knowledge necessary to survive and thrive in Vietnam.
All of these factors increase the Applicant's overall vulnerability to traffickers.
Relocation
Given that the Tribunal is minded that trafficking is a major concern in Vietnam, we submit that the harm that the Applicant would suffer at the hands of his traffickers and/or other trafficking groups and criminal enterprises is not localised. These groups are well-organised and have widespread influence and connections, both domestically and internationally. If his traffickers are able to connect the Applicant to the Saigon Airport, the safehouse in [Country 1] owned by [an Occupation 1], and to track him here in Australia, we submit that they would be able to locate him relatively easily in their home base of Vietnam.
State Protection
The Applicant would not receive effective protection from the Vietnamese authorities. It is our submission that the authorities are either complicit in the trafficking of Vietnamese citizens abroad through bribery and corruption, or lack competency to prevent and protect their citizens from being trafficked. As such, the Applicant would not be provided state protection.
In 2000, the United Nations General Assembly adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime5 . Part II of that Protocol requires States to take certain steps with regard to the protection of victims of trafficking. Measures relate not only to protecting the privacy and identity of victims of trafficking, but also to their physical, psychological and social recovery⁶

Relevantly, Article 6 of the Protocol ⁷ states that each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons in the provision of:
⁵_{United Nations Treaty Collection, 'Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime' (15 November 2000), available at: I1_12_ap.pdf}
₆ _{UNHCR, 'Guidelines on international protection : The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked' (7 April 2006), available at: legal/ 443b626b2/guidelines-international-protection -7-application-article-1a2-1951-convention.htm,l at 9}
₇ _{United Nations Office on Drugs and Crime, 'United Nations Convention against Transnational Organized Crime and the Protocols Thereto' {2004), available at: NTOC/Publications /TOCConvention/TOCebooke.pdf, at 44.}
(a) Appropriate housing;
(b) Counselling and information in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand;
(c) Medical, psychological and material assistance; and
(d) Employment, educational and training opportunities.
In the US Department of State's Trafficking in Persons Report 2019, Vietnam was downgraded to the Tier 2 Watch List for a number of reasons⁸:
The government did not demonstrate overall increasing efforts for the elimination of trafficking compared to the previous reporting period.
Significantly fewer victims were being identified than in previous years.
Law enforcement efforts were impeded by the delayed release of formal implementation guidelines on Article 150 and 151 of the penal code.
Lack of interagency coordination and unfamiliarity among provincial officials with anti-trafficking law and victim protection, which continued to impede anti trafficking efforts.
The Report also notes that the Vietnamese government has decreased efforts to protect victims as incomplete data collection and poor interagency cooperation led to low victim identification ⁹. Local and provincial government officials at times did not demonstrate a clear understanding of victim identification, including in some cases by conflating it with the confirmation of official identity documents.¹⁰
Vietnamese authorities also did not devote adequate funds for victim protection, encouraging provincial governments to use their own funds for trafficking programs to further decentralize this responsibility, and relied heavily on civil society to provide protection services with limited in-kind support¹¹. We respectfully submit that by outsourcing its fundamental duty to protect its own citizens, the Applicant's is unlikely to receive effective state protection.
On the papers, the Vietnamese Ministry of Labour, Invalids, and Social Affairs reported to have operated 400 social protection centres through local authorities to provide services to a wide range of vulnerable groups. However, the Report also goes on to state that these centres were ultimately unevenly staffed, under-resourced, and lack appropriately trained personnel to assist victims ¹².
_{8 US Department of State, 'Trafficking in Persons Report 2019' (June 2019), available at: at 498}
_{9 Ibid, 499}
¹⁰ _Ibid
¹¹ _Ibid
¹² _Ibid
In relation to Article 6 criteria above, the Report notes that there were no government shelters designed exclusively for male or child victims, leaving the Applicant to rely on NGO support. Even in the event that he is able to receive shelter, the Report states that contrary to international best practices, these shelters typically confine victims for multiple years with limited freedom of movement ¹³. We submit that this would in fact further harm the Applicant's psychological and emotional wellbeing. Indeed, the Report also noted that psycho-social services for victims remained underdeveloped¹⁴.
Where a State fails to take such reasonable steps as are within its competence to prevent trafficking and provide effective protection and assistance to victims, the fear of the individual is likely to be well-founded. The mere existence of a law prohibiting trafficking in persons will not itself be sufficient to exclude the risk. If the law exists but is not effectively implemented, or if administrative mechanisms are in place to provide protection and assistance to victims, but the individual concerned is unable to gain access to such mechanisms, the State may be deemed unable to extend protection to the victim, or potential victim, of trafficking ¹⁵ .
We submit that this establishes that the Vietnamese authorities lack competency to protect the Applicant from his traffickers, as well as the risk of retribution and re-trafficking from them and/or other trafficking syndicates. The US Department of State's Report then concluded that complicit Vietnamese officials, primarily at commune and village levels, facilitate trafficking or exploit victims by accepting bribes from traffickers, overlooking trafficking indicators, and extorting money in exchange for reuniting victims with their families¹⁶. It is then our submission that this increases the Applicant's overall vulnerability, because the very same authorities that he should be able to rely on for protection are also the agents of his trafficking and persecution.
Country Information
In September 2018 the UK Home Office released a country information report on Vietnam and victims of trafficking. This report notes that whilst 'trafficking for sexual and labour exploitation is prohibited under the law' ¹⁷ trafficking remains a problem. Further, the US Department of State in 2018 noted that 'the Government of Vietnam does not fully meet the minimum standards for the elimination of trafficking.' ¹⁸
¹³ _Ibid
¹⁴ _Ibid
¹⁵ _{UNHCR, ' Guideline s on international protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked' (7 April 2006), available at: https:// at 9}
¹⁶_{US Department of State, 'Trafficking in Persons Report 2019' (June 2019), at 501.}

¹⁷ _{UK Home Office, Country Policy and Information Note - Vietnam: Victims of trafficking' (September 2018), available at: s/system/upload s/attachment data/tile/741212/Vietnam-Trafficking-CPIN-v3.0Sep-2018.pdf, at (2.5.1).}
¹⁸ _{US Department of State, 'Trafficking in Persons Report 2018' (June 2018), available at: at 454.}
Both reports note that a lack of coordination across provincial agencies, a lack of understanding of the relevant laws, and economic issues combine to result in an uneven enforcement of the anti-trafficking laws in Vietnam.¹⁹
It has been widely reported that the prevalence of trafficking in Vietnam has increased since 2016, and that 'poor crime statistics' mean that the actual numbers of people trafficked are probably higher than what is statistically reflected. ²⁰ In November 2017 Viet Nam news reported that trafficking continued to increase because it is difficult to control.²¹
Despite general attempts made to reduce the proliferation of trafficking, for instance through increased law enforcement efforts and the introduction of penal code amendments criminalising all forms of labour trafficking in 2018, in recent years the government has decreased efforts to protect victims. ²²
Vietnam has made some progress and efforts to prosecute trafficking offenders; however, the Government made fewer conviction s in 2015 than the previous two years. ²³ Victims trafficked from subregions with low detection and conviction rates are found in large numbers in other subregions. This suggests that trafficking networks operate with a high degree of impunity in these countries. This impunity could serve as an incentive to carry out more trafficking.²⁴
The broad variety of destinations and the intensity of trafficking from sub-Saharan Africa and East Asia suggest that traffickers in these countries are very active and well-organized. Therefore, for the countries in these two subregions, the lower level of convictions does not reflect limited trafficking activity, but rat her a limited response to trafficking; a generalized impunity determined by a lack of institutional capacity to address this crime in these areas.²⁵
¹⁹ _{UK Home Office, Country Policy and Information Note - Vietnam: Victims of trafficking' (September 2018), available at: at (2.5.3); US Department of State, 'Trafficking in Persons Report 2018' (June 2018), available at : at 454}²⁰ _{UK Home Office, Country Policy and Information Note - Vietnam : Victims of trafficking' (September 2018), available at: https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/tiIe/741212/Vietnam-Trafficking-CPIN-v3.0Sep-2018.pdf, at (4.1.3-4.1.4).}
²¹ _{Viet Nam News, 'Human trafficking on the rise' (4 November 2017), available at: _{US Department of State, 'Trafficking in Persons Report 2018' (June 2018), available at: at 454.}}
²³ _{DFAT Country Informati on Report - Vietnam (21 Jun e 2017), at 2.32.}
²⁴ _{UNODC, Glob al Report on Traff icking in Persons (December 2018), available at :}
_{htt ps:/ / www .unodc.org/documents/ data -and-analysis/ glotip/ 2018/GLOTiP 2018 BOOK web small. pdf, at 8.}
²⁵ _{Ibid, 24}.
Cumulative nature of claims
The Tribunal's own Guide to Refugee Law in Australia sets out the importance of considering claims to protection based on a range of factors in a cumulative way. It instructs that in order to assess whether the Applicant's fear is well founded (in other words that objective element) "it is necessary to consider the totality of the circumstances"
For example, an applicant may assert a number of past experiences, none of which by themselves would give rise to a well-founded fear of being persecuted but considered together may well give rise to such fear.²⁶
The Guide goes on to quote the decision in MILGEA v Che Guang Xiang²⁷, in that decision the Court said:
To establish whether there was a real, as opposed to a fanciful , chance that Che would be subject to harassment, detention , interrogation , discrimination or be marked for disadvantage in future employment opportunities by reason of expression of political dissent, it was necessary to look at the totality of Che's circumstances.²⁸
The Applicant has a number of claims, some of which, if they were considered alone, would not amount to a real risk of persecution. They include
• The vulnerability of the Applicant due to the fact he was raised in an orphanage, in an environment of total control.
• The fact that the Applicant has no family support.
•At a young age the Applicant was trafficked, under threat of violence.
• The Applicant did no work for the traffickers on arrival and as such owes a debt to them for the cost of bringing him to Australia.
• The Applicant revealed details about his experience against the demands of his traffickers.
• The Applicant is a devout Catholic, and has already experienced discrimination and isolation due to his beliefs.
• The Applicant came at a young age and spent formative years in Australia, increasing his vulnerability on return.
• The Applicant is also a failed asylum-seeker and has spent long periods in detention, which may be perceived as bringing his own country into disrepute.

²⁶ _{Guide to Refugee Law in Australia, Chap 3 (AAT) %20Refugee%20Law/Chapter3WFF.pdf}
²⁷ _{[1994) FCA 1259 (Jenkinson, Spender and Lee JJ, 1 2 August 1994)}
²⁸ _{Ibid, at [40)}
When considered together, it becomes clear that the Applicant is at a real risk of persecution or significant harm. The harm could be
• Arbitrary depravation of life at the hands of those who trafficked him,
• Inhumane and degrading treatment on the part of those whole trafficked him, motivated either by retribution or through being forced back into servitude through re-trafficking.
• Inhumane and degrading treatment at the hands of the authorities, either as part of a period of detention on arrival, or due to any or all of the factors outlined above.

For these reasons we respectfully submit that, when considered cumulatively, the particular circumstances of this young man put him at a real risk of significant harm.
Conclusion
We submit that the Applicant is owed protection because he meets the definition set out in section 36(2)(a) of the Migration Act 1958, due to a well-founded fear of persecution due to a cumulative consideration of his religion and membership of a particular social group, that being young trafficked men from Vietnam.
In addition, he is also owed protection because he meets the definition of complementary protection set out in section 36(2)(aa) in that he is at real risk of significant harm at the hands of the traffickers and/or the Vietnamese authorities.

Assessment of Claims and evidence, and findings:
131. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Credibility
132. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

133. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

134. The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicant’s evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter. The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter.
135. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
136. The evidence of the applicant provided at this hearing was, in virtually all respects, consistent with evidence previously given to the delegate. The Tribunal had initial concerns about the applicant being unenthusiastic to appear before it at the first hearing, but given the technical issues experienced, gave the applicant the benefit of the doubt. At the second hearing, in the company of his representative, the applicant appeared much more confident and self-assured and answered questions confidently and without hesitation. When challenged by the evidence he provided at his entry interview, he willingly owned his previous mistruths and spoke earnestly as to the reasons he provided the information that he did. The Tribunal was satisfied that the applicant was a witness of truth and was credible.
137. The Tribunal discussed at length the application of s.91WA with the applicant. As recorded earlier, it was clear to the Tribunal that the applicant had disposed of, and caused the destruction, of his identity documents, by throwing his passport overboard. But having considered his explanation of the circumstances of his transit, and the impassioned submission of his representative, the Tribunal was satisfied with the reasonableness of his explanation. His explanation was plausible against the backdrop of him being a child, having lived his life in an orphanage and one used to submitting to authority.
138. The Tribunal accepts that the applicant grew up and resided in [Village 1], Ba Ria-Vung province in Vietnam.
139. The Tribunal accepts that the applicant has lived most of his life in two orphanages.
140. The Tribunal accepts that the applicant has no family contact and further accepts that the applicant has no knowledge of his parents or their whereabouts.
141. The Tribunal accepts that the applicant is a Catholic and was most likely raised as a Catholic in the first orphanage he attended.
142. The Tribunal accepts that the applicant was offered a passage to Australia from the orphanage.
143. The Tribunal accepts that the applicant departed Vietnam legally in 2013 to go to [Country 1] en route to Australia. The Tribunal accepts that the applicant experienced no difficulties in departing Vietnam.
144. The Tribunal accepts that the applicant arrived in Australia as an unaccompanied minor.
145. The Tribunal accepts that the applicant was initially placed into detention and then released into community detention.
146. The Tribunal accepts that the applicant was to be engaged in some sort of drug cultivation activity in Australia but was warned against it by a church official. The Tribunal accepts that the applicant has not been engaged in such activities.
147. The Tribunal accepts that the applicant absconded from community detention [in] February 2014 and was located in North Queensland again [in] June 2018.
148. The Tribunal notes that it was some five years after his arrival, and only after being placed into detention again that he applied for a protection visa. The Tribunal accepts, by virtue of the type of visa that he has actually applied for, that he may have been advised that he could not apply for a protection visa, and coupled with his age, his life inexperience and immaturity, elected to escape rather than seek support from the authorities.

25.04In 18 February 2009 correspondence, an official at the Consulate General of Canada in Ho Chi Minh City, Vietnam stated that individual's names are removed from the household registration (ho khau) under the following circumstances:
1) ... [B]eing declared disappeared or dead by the Court;
2) Being recruited by the Army, Police and living in barracks;
3) Having immigrated abroad;
4) Being registered at a new residence; in this case, the local authority that processes the new permanent residence of the citizen has the responsibility of informing the delegated authority for issuing the certificate of household move to remove the permanent residence of that individual at the previous residence.
The Official also indicated that Persons who have been absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence as stipulated.
With regard to those persons who have registered their permanent residence but who in fact do not live in their permanent residence address without any plausible reasons, or cannot live there, the household management agency must cross out their names in the household registration book...
The Official stated that household registration procedures and paperwork may vary slightly from province to province… The information provided by the Official is based on government Decree/Circular, government websites and local knowledge... When asked about whether individuals are removed from their household registration as a form of punishment, an international human rights lawyer specializing in Southeast Asia stated the following: ‘I know of no situation where a person is removed from their own [household] Registry, but cannot state that it is not done in cases where some doubts exist as to a family relationship’... No further information relating to the removal of individuals from their household registration as a form of punishment could be found among the sources consulted by the Research Directorate.

165. Information before the Tribunal is that on 5 August 2013 Vietnam’s Ministry of Public Security (MPS) provided formal advice to DFAT on the circumstances in which a returnee from abroad may reapply for household registration in Vietnam:
2. Vietnam’s Residency Law and accompanying regulations ensure Vietnamese who’ve been living overseas can register for permanent residency and receive household registration papers. Nothing in the Residency Law makes registration more difficult for individuals who no longer have relatives in Vietnam or who have acquired a criminal record overseas.
3. To reapply for permanent residency, returning Vietnamese must provide the following:
·     a declaration of any changes to household registration details and members
·     a declaration of current household members
·     documentary evidence of a legal place of residence (unless the person is accepted for registration with an existing household)
·     a valid foreign passport or residence permit
·     a repatriation document issued by a Vietnamese representative office in the country the applicant is leaving
·     a Vietnamese passport with an entry permit stamp from Vietnamese border authorities (if the person still holds a valid Vietnamese passport)

4. To register for residence in a centrally-administered city, the person must submit an application for residency to the local police and allow 15 days for processing.
5. MPS hasn’t told Post whether household registration would be possible for a person deprived of Vietnamese citizenship […] Post’s understanding of the Vietnamese version of Article 23 [of the Nationality Law] (which we consider reliable) is that a person deprived of Vietnamese citizenship must wait at least five years before reapplying. Post asked the Justice Ministry for formal advice on Article 23 but, despite prompting, did not receive a response.
6. Although a person may be deprived of citizenship, this requires a formal act by the Vietnamese Government.

166. The Tribunal noted Country Information from the DFAT Report:
Ho Khau (household registration)
5.23 The 2006 Law on Residence establishes the household registration system and policies. There are two categories of registration: temporary and permanent (reduced from four under the previous law). In 2013, revisions were made to the law in response to concerns raised by the MPS over rapid urbanisation in major cities and more people changing their status to permanent after one year of residence (previously three years). The revisions tightened the requirements for permanent residence from one year to two years of continuous residence. The 2012 Capital City Law further tightened requirements for permanent residence in Hanoi to three continuous years of residence before status can be changed to permanent.
5.24 Ho Khau registration is initially obtained through the registration of a person’s birth with the village or provincial administrators. Officials use the registration system to determine the levels of services provided to villages and provinces, linking a person’s right to access government healthcare, education and other services to their place of residence. Ho Khau registration is also essential for obtaining employment with the government or in state-owned enterprises. Although health care facilities can be accessed anywhere in Vietnam in emergency cases, public facilities may turn away non-life-threatening cases where the person is not properly registered. Access to schools is determined by Ho Khau registration and administration fees may apply to children not registered in an area zoned for a particular school. For members of minority groups, Ho Khau registration is essential to access development-related entitlements in rural and regional centres. This may include additional language training or employment related training.

167. The Tribunal is satisfied that on the basis of Country Information available, and particularly the DFAT Report, if the applicant is returned to Vietnam, he will be provided with a new household registration by the authorities.
168. The Tribunal is satisfied that the applicant’s activities before leaving Vietnam are not such as to give rise to a real chance that the Vietnamese authorities would harm him for reason of any actual or perceived political opinions. The Tribunal is satisfied that the applicant does not have the kind of profile that places him in the category of a political activist who might attract adverse attention on their return.
Refugee findings:
169. For the reasons set out above, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Vietnamese authorities because of any imputed political opinion, his Catholic faith, or his attempts to seek asylum in Australia, whether or not the Vietnamese authorities are aware that he sought protection in Australia.
170. The Tribunal is satisfied that the applicant does not have the profile of a political activist, or a person who has acted against the Vietnamese government. The Tribunal accepts that on return to Vietnam the applicant is not likely to be prosecuted or jailed for having committed an offence against Vietnam’s entry laws for not having a passport on return, although he may be detained for identity checks The Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his departure from Vietnam and having sought protection in Australia.
Cumulative findings:
171. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant (including that he was a minor when he left Vietnam), the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of any imputed political opinion, his Catholic faith, or his attempts to seek asylum in Australia, or any other reason if he returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vietnam. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
172. The Tribunal has considered the applicant’s claims under complementary protection.
173. 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). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
174. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for the reasons claimed of his Catholicism or being a failed asylum seeker if he returns to Vietnam now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.
175. The Tribunal notes the applicant’s claim that after he was released into community detention, he was contacted by the traffickers about working in the cannabis farm. He thereby became very fearful of retribution from them for not working for them as contemplated, having a significant debt to them and now having disclosed the reasons for his arrival in Australia. The Tribunal also noted his evidence of genuine fear of the traffickers and having to return to Vietnam, a place he does not know and where he has no family or support or life skills.
176. The Tribunal read with interest and concern the Country Information submitted by the representative in relation to the activities of people traffickers in Vietnam and their predilection to court young people from orphanages. As referenced in the post hearing submission (recorded earlier in this decision), the Tribunal was particularly concerned by the report suggesting that trafficking continued to increase because it is difficult to control and that in recent years the government has decreased efforts to protect victims. That Country Information would tend to suggest that State protection may not be readily available to the applicant.
177. The Tribunal noted the UK Home Office report and US Department of State reports of 2018 advising that the Government of Vietnam does not fully meet the minimum standards for the elimination of trafficking. Furthermore, it does not provide to victims appropriate housing, counselling, advice in relation to victim’s rights, medical, psychological and material assistance or employment, educational or training opportunities.
178. The Tribunal has accepted that the applicant was trafficked from Vietnam, with the stealth of his removal, pre-prepared identity documents (including passport) and the likelihood that it was arranged by a scout from within the orphanage all consistent with Country Information. The fact of his youth, no family connection or ties, no support network and no experience in employment, living outside an orphanage, and dare it be said, no actual real life experiences as an adult in Vietnam (outside of an orphanage), plays into the lack of support provided by the Government that the applicant would particularly require.
179. When the Tribunal considers cumulatively all of the applicant’s circumstances and attributes, being, as submitted by the representative:
·His vulnerability due to the fact he was raised in an orphanage, in an environment of total control;
·He has little or no experience outside the walls of the orphanage, resulting in a lack of life skills necessary to survive in Vietnam;
·The fact that he has no family support;
·At a young age he was trafficked, under threat of violence;
·He did no work for the traffickers on arrival and as such owes a debt to them for the cost of bringing him to Australia;
·He has revealed details about his experience against the demands of his traffickers;
·He is a devout Catholic, and has already experienced discrimination and isolation due to his beliefs, but which draws attention to him;
·He is a returning asylum seeker, which draws attention to him and may isolate him;
·He came at a young age and spent his formative years in Australia, increasing his vulnerability on return;

180. The Tribunal has noted the applicant’s resilience and ability to find employment in Australia, but it is argued that only serves to make him less capable of returning to life in Vietnam, having worked only in westernised circumstances.
181. The Tribunal has found that, based on Country Information, he will be granted household registration upon his return, entitling him to the benefits that go with such registration. But the fact of such registration does not necessarily address the issues the applicant faces as identified above.
182. The Tribunal also notes Country Information identifying the possibility that the applicant may be re-trafficked.
183. The Tribunal notes particularly that the applicant has no family support unit in Vietnam. He has no contact with his parents and no contact with his “mothers” from the orphanage.
184. The Tribunal particularly notes that the applicant would be returned to a country in which he does not know anyone, to a culture he does not understand, and a community into which he had never integrated.
185. The Tribunal notes that the applicant possesses no education beyond Year [number] and no vocational skills or experience in Vietnam. He has worked only as a [Occupation 2] and [Occupation 3].
186. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied that there exists a real risk that the applicant may be arbitrarily deprived of life at the hands of those who trafficked him, he will be subjected to cruel or inhuman treatment or punishment by those who trafficked him by reason of retribution or he will be subjected to degrading treatment or punishment by society or the authorities by reason of failure to support him as a victim of trafficking, if he returns to Vietnam now or in the reasonably foreseeable future.
187. Accordingly, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
188. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
189. Considering the applicant’s individual circumstances both individually and cumulatively, and the Country Information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.
Overall conclusion:
190. 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).
191. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
192. 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
193. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Michael Hawkins
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.
…

[2019] AATA 6729

14 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction