1907208 (Refugee)

1907208 (Refugee) [2023] AATA 1318 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Tanya McIntyre (MARN: 1571093)
CASE NUMBER:  1907208 and 2200455
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:31 March 2023
PLACE OF DECISION:  Brisbane

DECISION: The Tribunal remits the following matters for reconsideration:

a.Matter 1907208 (Temporary Protection visa application) made on 25 August 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and
b.Matter 2200455 (Safe Haven Enterprise visa application) made on 28 September 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 March 2023 at 10:30am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – political opinion – filing a complaint and appeal about the property – fear of harm at the hands of the Vietnamese authorities – opposition to forcible resumption of his family land – land dispute – left Vietnam illegally – religion – Christian – membership of particular social group – a failed asylum seeker – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 438
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 21 May 2018 and 21 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 25 August 2016 and 28 September 2020.
According to Departmental records, the applicant arrived in Australia by sea at Darwin on
[date] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Temporary Protection visa visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The delegate refused the visa(s) as they did not find the applicant to be a credible witness.
The applicant was represented in relation to the review. The representative provided a legal submission and documents to the Tribunal.
The applicant appeared as a witness at his wife’s hearing, and he gave evidence. The applicant’s claims are the same claims as his wife’s claims. Due to the fact that the applicant had given evidence at his wife’s hearing and based on the wife’s evidence and documentation, the Tribunal considered that the applicant did not need to appear again at his own hearing and has gone onto make a decision on the papers.
The applicant has provided the Department with documentation to prove his identity. The Department has assessed that the applicant is a Vietnamese national and has assessed his claims accordingly. The Tribunal has also accessed documents that show the applicant is a national of Vietnam. The Tribunal accepts that the applicant is a national of Vietnam and has assessed his claims against that country in relation to s 36(2)(a) and s 36(2)(aa) of the Act.
On the basis of the above-mentioned reasons, the Tribunal accepts the applicant’s identity as claimed.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
The applicant’s file has a s 438 Non-Disclosure Certificate on it. The Tribunal has considered the certificate and considered that it is a valid s 438 certificate.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant’s migration history is as follows:
·[Date] March 2013      departed Vietnam.
·[Date] April 2013                    rescued at sea by Australian customs.
·[Date] April 2013                    arrived in Australia at Darwin, non-excised place under the Act.
·20 August 2013         screened in, barred from making application.
·15 October 2014        released from immigration detention.
·March 2016                re-detained in immigration detention.
·25 August 2016         TPV application dated on visa refusal decision 9 May 2017 (on or    about) – protection interview.
·15 May 2017              BVE 050 granted in relation to protection application.
·30 January 2018        protection interview.
·21 May 2018             TPV visa refusal 24 July 2018 – IAA decision affirms visa refusal decision.
·6 August 2018 decision of Perram, Wigney and Lee JJ in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, appeal from DBB16 v Minister for Immigration [2017] FCCA 375.
·27 August 2020         notice of invalid application following DBB16.
·10 September 2020    invitation to apply for TPV or SHEV.
·28 September 2020    SHEV application.
·22 September 2021    protection visa interview by video conference
·21 December 2021     SHEV refusal decision.
The applicant was born in [a] Village in Nghe An in Vietnam on [date]. His parents were [occupations] and he completed secondary school after which he worked on his family plot of land. The applicant got married in 2004 and lived in his mother-in-law’s home. He went to work in [other countries], and he returned in 2011 when he worked with his wife in their [business].
The applicant’s claims as summarised in the delegates decision are as follows: [1]
[1] [File number]
·The applicant is now a Christian.
·The government issued resumption orders offering very low amount of compensation for land in his local area.
·The government wanted his family to move off their land to build houses for officials.
·The resumption order is still valid although it has not been enforced.
·None of the landowners are permitted to build anything else on their land due to the resumption order.
·A local government official was given special permission to build on his block.
·The way his family and the other locals were dealt with was unfair.
·His family made an official complaint in October or November 2012 signed by many local people.
·Over the next five or six weeks, the local police visited his family and told them to withdraw the complaint.
·The police sent letters to his family regarding the land resumption before.
·The police threatened his family with jail term.
·Gangsters were also hanging around his family home.
·He was not allowed in the local area because of the land issue and the complaint.
·He moved to [Town 1] in [a] district and started a [business].
·Government officials from his home area sent a letter to officials in [Town 1] stating that he was to be stopped operating his business.
·He and his wife decided to leave Vietnam because they could not earn a living.
·His mother-in-law and his daughter are still residing in the family house.
·His daughter has to attend a private school due to the complaint he made regarding the land resumption.
·His main reason for seeking protection from Australia is his fear of harm at the hands of the Vietnamese authorities on account of his opposition to their forcible resumption of his family land.
·He fears that he will be put into jail because of the land dispute and also because he left Vietnam illegally.
Evidence gathered from wife’s hearing and applicant’s evidence provided orally and written
In 2006 the applicant’s mother in law’s home where he was living with his wife and daughter was the subject of resumption by the authorities. The applicant wrote a petition and many people who were neighbours also signed the appeal.
After he lodged the appeal, they authorities came and threatened his wife’s mother. They told her if he withdrew the appeal then it would be easier to survive. After that incident he started getting pulled over all the time, the police would come up with all sorts of excuses. They decided to set up a shop in his hometown, but the authorities became aware that they had started a [business] and they wouldn’t approve the business and the applicant asked his brother to put the business in his name, but he couldn’t. This is what happens in Vietnam, they set up everything and they stop them.
Not being able to do business and being harassed all the time, they would try to force him to accept the compensation and withdraw the appeal, but he refused. He was summonsed to a government office and two other people who signed the petition were also summonsed and they disappeared never to be seen again. The government would use different tactics, they would put pressure on him and harass them psychologically. He felt unsafe and other people left the area as well.
Country information
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted. See also Online activists and Land and environmental disputes.
Land and environmental compensation disputes
3.65 Protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land and landowners allege low levels of compensation, which sometimes leads to protests. A recent prominent example was the January 2020 Dong Tam commune incident in which three police officers and a civilian were killed. The Dong Tam commune protests had been occurring for some years; protesters’ trials concluded in 2020 with some protesters receiving the death penalty and others life in prison for charges that related to the deaths of several police officers. Social media commentary on the issue later led to arrests of, and prison terms for, those commenting, demonstrating the sensitivity of the issue.
3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
3.67 It is difficult to predict when a protest will escalate or attract Government attention. As with other protests, Government action might depend on the local government authority and its priorities. Overall, DFAT assesses that land and environmental protesters face a moderate risk of official discrimination.
Land disputes have long been a major source of social conflicts in Vietnam. Apart from disputes over land ownership like the one in Dong Tam, disputes over compensation amount paid to affected residents are also common. In most of the cases, corruption makes the situation worse, as corrupted officials colluded with investors and arbitrarily grabbed land from residents at low compensation price to hand over to investors who would later resell the land at much higher prices. Even in public projects for national development purposes, the low compensation amount given to landowners also generated grievances. Large groups of landowners gathering at central offices of the CPV to demand justice has long been a common scene in Hanoi. [2]
Protestants
3.32 There are a wide range of Protestant traditions present in Vietnam. Protestants are mostly members of ethnic minorities but Kinh Protestant communities also exist, especially in the south. Issues of religious DFAT Country Information Report VIETNAM January 2022 16 freedom and connection with land may overlap with ethnic issues. Officially registered churches that cooperate with the Government are generally able to organise and operate relatively freely and those that are engaged in political activism are likely to attract the attention of authorities.
3.33 Protestant groups can face bureaucratic difficulties. For example, gatherings might be banned on technicalities such as not having approved lists of attendees. DFAT is also aware of reports of recent examples of more serious harassment such as Protestant ministers in remote areas having assets seized or premises raided – but notes, again, that religious and political issues tend to overlap.
3.34 Registered Protestant groups experience less interference from the Government than unregistered groups. Nonetheless, DFAT understands some unregistered churches do operate. It is difficult to assess in a general way whether they have tacit approval of authorities, but some unregistered churches still operate with house church gatherings of a few people up to several hundred people. Other house churches may have a certificate of registration for prayer groups, for example for their family. The situation likely differs from place to place.
3.35 In-country sources told DFAT activities such as Protestant conferences and meetings are generally unrestricted in large cities. Efforts to expand or build churches in more remote areas can be difficult. Bureaucratic obstacles, including obtaining permits, may prevent the construction of churches or the establishment of new communities.
3.36 Conversely, Protestant house churches might provide social services with the cooperation of Government; for example, city authorities in Hanoi allowed house churches to operate drug rehabilitation services, according to the 2020 US Department of State International Religious Freedom Report. The same report also noted that Catholic and Protestant groups were sometimes reluctant to open schools or hospitals because of legal restrictions, despite the Government’s official encouragement of the opening of those services. In-country sources told DFAT of cooperation between different Protestant churches to provide food and other essentials to people during the COVID-19 pandemic. Protestant religious education is available, but again the situation may differ from place to place.
3.37 Different denominational traditions tend to have good relationships with each other while remaining largely independent. Some Protestants have relationships with churches overseas, including in Australia, and international Protestant conventions have occurred recently in Vietnam with few reports of difficulties.
3.38 The 2020 US Department of State International Religious Freedom Report notes that Protestant Christianity is growing in Vietnam. Despite some difficulties with bureaucracy, in-country sources told DFAT that efforts to evangelise and recruit new members are possible in large cities. DFAT understands that this is the case in relation to large events in which people might preach. Reports are mixed and DFAT understands that over time and in different parts of Vietnam there have been varying levels of tolerance from authorities towards evangelism.
3.39 DFAT assesses that members of registered Protestant churches face a low risk of official discrimination or harassment in relation to their faith. Adherents of unregistered Protestant churches face a moderate risk of official discrimination if they are engaged in political expression, protests or criticism of the Government (in which case see Political Opinion (Actual or imputed)). In-country sources told DFAT that Protestants experience little societal discrimination, especially in cities. The situation is different in small rural communities, where societal discrimination might be more prevalent but would differ from community to community.
[2] "Deadly Clash Brings Vietnam's Land Disputes into the Spotlight" by Le Hong Hiep - ISEAS-Yusof Ishak Institute
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and twenty years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.

The Tribunal has considered all available country information in relation to the applicant’s claims for protection. They fall into three separate categories. One is the applicant’s political opinion for filing a complaint and appeal about the property. The second category is about the land dispute itself and country information indicates that land disputes are a common occurrence in Vietnam and corruption amongst local authorities also plays a role. The third category is religion and the applicant having been baptised.
Findings
The Tribunal considers that country information supports the applicant’s contention that he will face persecution for his political opinion. The information demonstrates that he would be at particular risk given the way the Vietnamese authorities operate.
The Tribunal accepts the applicant’s claims about his background, family and work. The applicant gave evidence at his wife’s hearing in relation to his claims and I found him to be honest and forthright. As in the case of the applicant’s wife, the Tribunal accepts the applicant left Vietnam over ten years ago and the Tribunal also accepts that the applicant filed an appeal against the government over a land dispute and he became a target of the authorities.
The applicant was baptised as a Christian in 2015 and his wife was also baptised. At his wife’s hearing she said they are both Christians but do not attend church that often as they have young children and time is limited. However, he is still baptised a Christian and would find it difficult in his home area to practice his religion should he be returned to Vietnam.
The Tribunal finds it would be extremely difficult for the applicant to be able to reacclimate into Vietnamese society after having been gone for so long, having left without any documentation and having a political profile. The applicant would be known to authorities for his appeal on the land dispute and he faces certain detainment upon return for that reason, and for leaving the country illegally.
In respect of the applicant, the Tribunal considers that the subjective fear that he has for the future is objectively made out on the available country information. The Tribunal considers the applicant’s fear of the authorities and what they will do to him does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from his political opinion, his religion, and as a failed asylum seeker.
The Tribunal finds that the applicant has a real chance of serious harm on return to Vietnam primarily for his political opinion. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
Relocation within Vietnam for the applicant would be very difficult with his profile, no paperwork or any ID documents, and given that the applicant fears harm from the authorities, and as they exist nationally, he would not be able to relocate to avoid the harm he fears in his home area.
The Tribunal has also gone on to consider whether the applicant can avail himself of state protection. The actors who are causing harm are state actors and the Tribunal considers that the applicant cannot avail himself of state protection.
The Tribunal therefore considers, based on the evidence before it and cumulatively, that the applicant has a real chance of serious harm arising from his political opinion, his religion and as a failed asylum seeker. The Tribunal finds that the applicant has a well-founded fear of persecution for these reasons.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the following matters for reconsideration:
a.Matter 1907208 (Temporary Protection visa application) made on 25 August 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and
b.Matter 2200455 (Safe Haven Enterprise visa application) made on 28 September 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1318

31 March 2023

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Immigration

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Jurisdiction

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