1907277 (Refugee)

1907277 (Refugee) [2024] AATA 4331 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907277
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Michael Simmons
DATE:07 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 August 2024 at 3:34pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – corruption by authorities slowed business – application prepared by another person without applicants’ knowledge of contents – no opposition to government or protest activity – multiple departures and returns, and renewed passport – stay and work in Australia – considering departing next year – claim of fear of harm as returned failed asylum seekers made at hearing – vague and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 13 August 2018. The applicants appeared before the Tribunal on 7 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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 issue in this case is whether the applicants face a real chance of serious harm or a real risk of significant harm were they to return to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicants claim to be citizens of Vietnam, and that they are married to each other.
Information in the delegate’s decision record indicates that the second applicant (the first applicant’s wife) travelled to Australia on a visitor visa on [date] July 2017, departing [date] July 2017. They both then travelled to Australia [in] June 2018 on visitor visas
The applicants provided copies of their Vietnamese passports, obtained in Sydney in 2022, which support their claimed identity and nationality. They both provided consistent, plausible and reasonably detailed information in respect of the life they share together, including discussing their children, business, housing situation and previous holidays together. Information in their respective passports confirms that they have travelled together to various countries in Europe and Asia over a number of years. I accept that the applicants are who they claim to be, and that they are nationals of Vietnam. I am satisfied that they are husband and wife. Vietnam is the receiving country for the purpose of this assessment.
Protection claims
Both applicants raised protection claims in their visa applications which concern the same events and are presented in very similar terms.
The applicants claim they operated a [product] business. Over time, they faced corruption from the authorities. There was a ‘distortion’ of funds and they could not run their business smoothly. The business slowed down and debts increased causing financial stress from creditors and the local authorities. Since then, the applicants have opposed the communist government and their corruption.
On many occasions they were in direct conflict with local policies, and opposed ‘ironfist’ laws. Being opposed to the current regime, they looked for open minds and travelling abroad for a better financial situation.
If they were to return to Vietnam the applicants would be mistreated and ignored for opposing the communist government regime. They would possibly face court for many times conflicting with them about human rights and corruption. Penalties and financial harm would be imposed which would make life for their family harder and harder. Laws and decisions would be imposed that would make running their business very difficult, causing debts to creditor to be larger and larger, and also mentally causing some issues. Every part of the communist country is run the same and laws are applied uniformly. They would face financial distortions wherever they go. The authorities will not protect them.
The second applicant also indicated that due to her family’s opposition to the government they were mistreated, ignored and “put my family as people opposing their regime”.
During the hearing, I discussed the protection claims with each applicant separately.
The first applicant raised a new claim during the hearing, suggesting that he fears returning to Vietnam because he submitted a protection visa application in Australia.
Consideration
I explained to both applicants the refugee and complementary protection criteria.
I asked the first applicant whether he believes he meets either the refugee or complementary protection criteria, and he replied “no”. He also indicated that he did not believe he would face any chance of harm in Vietnam in the future.
The first applicant asked me to explain what was in his protection visa application because he does not know what was written in it. He told me that he just followed others in applying for a protection visa so he could stay in Australia for a few years to work. He told me that he and his wife paid $3000 to a Vietnamese person in Melbourne to prepare the visa application. He does not know if this person was a lawyer.
The first applicant indicated he never protested against or opposed the government while in Vietnam. I noted that the application expressed on many occasions he opposed the government and their policies and he replied that this was inaccurate. He evidence was that he had not ever had any problems with the Vietnamese authorities for any reason. I asked him specifically whether he had any problems with the government related to the [business], and he answered no.
He confirmed to me that his [children] in Vietnam lead a normal life and have no problems there. He is sending them money from Australia. He indicated that he owns two houses in Vietnam. He has saved money during his six years working in Australia, and as he owns property in Vietnam, he has no concerns about him and his wife meeting their basic needs were they to return to Vietnam.
I noted that the first applicant and his wife had travelled in and out of Vietnam a number of times, including taking holidays in Europe and across Asia. I put to him that his ability to enter and exit the country without issue did not suggest that he has any profile of interest with the Vietnamese authorities for any reason. I also put to him that his decision to return to Vietnam following each trip also was not suggestive of him fearing harm in Vietnam for any reason. He agreed with this.
The first applicant asked if he decided to return to Vietnam does he need to buy a plane ticket and leave or must he first notify the Department of Home Affairs. He confirmed that he was considering going back to Vietnam. He wants to go back to Vietnam and intends to do so in the middle of next year. I indicated I could not advise him on what he can or should do, but he may speak with the Department of Home Affairs about this. He then queried whether his children will be able to study in Australia in the future, which I indicated I could not advise him on.
The second applicant told me that she does not know what is written in the protection visa application. When I asked her why she came to Australia, she replied because her husband submitted the visa application so they could stay. In response to my question as to why she wants to stay in Australia, she stated “I love this beautiful country”. She indicated that she does not know if she meets either the refugee or complementary protection criteria.
The second applicant told me she never had any problems or difficulties in Vietnam, and that she has no problems with the Vietnamese government. The second applicant stated that if she were to return to Vietnam tomorrow she believes everything will be normal and she will have no problems. She told me that she wants to move back to Vietnam in a few months. She confirmed that she plans to go back to Vietnam next year to be with her children, because her eldest child will be attending year [Number]. She also asked whether, if she returns to Vietnam, it is possible for her children to study in Australia in the future, which I indicated was something she would need to seek professional advice on.
[Product] business
The first applicant told me the [business] was not profitable and that is why it was shut down. He said that the business was a failed business which ran at a loss. He said that he had to pay bribes to the authorities to run the business.
His evidence was that they opened the business in 1990 or 1991 and closed in 2018, when they came to Australia. I put to him that given its longevity it did not seem like an unsuccessful business. He said initially it was running well but gradually it became unsuccessful. He told me he has no business debts. When I asked how the business was unsuccessful, and he replied that they could no longer make profit. I noted that the application stated he is in debt and in financial stress which he confirmed is not true.
I noted that being able to travel as he had, as well as owning multiple properties, was not indicative of his business struggling financially as claimed. He said that the business has no debts but is not making any profits and that is why it is closed.
The second applicant told me that the [business] was operated from 1994 until 2018. The business finished at that time because there was a shortage of [product]. She said the business was good. She rented a warehouse and had around [number] employees. The business was profitable and had no financial problems. There was never any problem with the government in connection with this business.
I read to the second applicant details from her protection visa application. She confirmed that she did not oppose the Vietnamese government and had no problems with them for any reason, including related to the [business].
I put to the first applicant the information provided by the second applicant regarding the [business]. I noted that contrary to his evidence, she stated the business was profitable and that there was no problems with the government at all related to the business. I explained the relevance of this information, the consequences of relying on it, and invited him to respond noting that he may request more time to do so. He replied by restating that initially the business was profitable but more recently it was not, and that he had to bribe the local authorities.
Given both applicants offered some reasonably spontaneous and detailed responses, I am prepared to accept that the run a [business] as claimed. However, I do not accept that they ever had any problems with the authorities because of this business. They have offered very imprecise and shifting details in relation to their claimed past difficulties with the Vietnamese authorities such that I do not accept they ever had any. Initially, both applicants confirmed that they never had any problems with the Vietnamese authorities for any reason, including related to the [business]. The second applicant confirmed that the business was profitable. The first applicant, notwithstanding his earlier responses, claimed that the business was not profitable because he was required to pay bribes to the authorities. However, despite what was written in his application he affirmed that the business did not have debts and he has not been in financial stress. Both applicants expressed to me that they only submitted the application so they could work in Australia for a few years and that they intend to return to Vietnam next year to be with their children. Given this, I prefer their initial responses to me that they have never had any difficulties with the Vietnamese authorities for any reason, over the first applicant’s imprecise suggestions that he was paying bribes. I also note that the applicant’s have travelled extensively, and that their ability to do so and repeated voluntary returns to Vietnam does not suggest to me that they fear harm there for any reason. Move over, both applicants told me separately that they plan to return to Vietnam next year to be with their children. I do not accept that they were ever of any adverse interest to the Vietnamese authorities for any reason connected to the [business]. I do not accept that the first applicant was forced to pay bribes or experienced any financial difficulties. I am not satisfied the applicants sincerely fear any future harm in Vietnam for any reason related to their [business].
Protection visa application
The first applicant asked me to explain to him whether he may have a difficult time in Vietnam because he has submitted a protection visa application.
I explained that details of his protection visa application are not shared with the Vietnamese authorities. I put to him that he had contacted the Vietnamese authorities while in Australia to renew his passport, which did not suggest to me that he fears being harmed from them for any reason including because he applied for a protection visa here. I also noted that he told me earlier he did not think he would be harmed by the Vietnamese authorities for any reason. I asked him whether he fears he could be harmed because he submitted a protection visa application in Australia, and he replied “no”.
When asked why he mentioned this claim, the first applicant said he did not know what the visa was for and if it may cause him any difficulties. He suggested he was worried if he returns to Vietnam they will give him a difficult time. When I asked why that was he said “no reason”. I put to him that this idea must have come from somewhere and I wanted to know why he presented this claim. He replied: “I heard it is something to do with politics. I do not thoroughly understand what this protection visa is about but I know it has something to do with political problems to do with the government”. I noted that he already told me he had no problems with the government, and he replied “correct”.
I reiterated that I wanted to understand why he was presenting this claim. He stated “the fear is from my heart”. I asked when this fear arose, and he replied “just then”. I noted that he had applied for the protection visa six years earlier, and it was unclear to me why he only today in the hearing became fearful of harm due to the visa application. The first applicant then shifted his position and said that the person in Melbourne who prepared the visa application told him to say this, but that he does not have this fear. I noted that he swore an oath at the start of the hearing to be truthful. He then said that he heard from people at work that he may be detained in Vietnam because he lodged the protection visa application, and that he heard this about 2-3 months ago. His shifting and imprecise evidence on this point was not persuasive.
I put to the first applicant information from the Australian Department of Foreign Affairs and Trade which notes that 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 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.[1] I also put to him information from the Department of Home Affairs which reports that persons who may be of interest on return to Vietnam include those involved in illegal activities including unlawful migration, and activists who return to Vietnam after seeking asylum overseas, with high-level activists facing more monitoring than low-level activists.[2] I noted that the applicants had left Vietnam lawfully, have not engaged in illegal activities and are not politically active, and as such these assessments do no suggest that they would be of interest in Vietnam even if it were known they had applied for protection visas in Australia. I asked if he would like to comment, and he replied “no”.
[1] Australian Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam, 11 January 2022.
[2] Department of Home Affairs, Common Claims: Vietnam, June 2024.

I put to the first applicant that the second applicant had told me explicitly that she had no reason to fear harm from the Vietnamese authorities, and that she believes when she returns to Vietnam she will have a normal life. I noted that she did not fear harm because she had applied for a protection visa. The first applicant told me his wife is not aware of anything to do with the protection visa application. I asked him why, if he believes he and his wife could be in danger in Vietnam because they applied for protection visas, why would he not inform his wife of this. The first applicant replied that he is not fully aware what the visa is about and the whole purpose of applying for it was to work in Australia. He added that he did not want to cause his wife to be worried. He then said that he does not really believe that the protection visa application would cause him problems in Vietnam so that is why he did not tell his wife. Given this, I asked him why he raised it with the Tribunal. He replied that because he was unsure that is why he asked the Tribunal whether it would cause problems for him.
I accept that were the applicants to return to Vietnam they would do so after having applied for a protection visa here. The second applicant did not suggest that she fears being harmed in Vietnam for any reason, including because of her Australian protection visa application. The first applicant provided shifting and imprecise details as to whether or not he fears his protection visa could create problems for him in the future in Vietnam, and if so why. His evidence was not at all persuasive. He variously suggested to me that his fear stemming from the application arose during the hearing, that the person who prepared the application told him to raise the claim, and that work colleagues told him it may cause him problems. When I asked why he did not convey any concerns he may have to his wife, he shifted his evidence again and said that he does not really believe the application would cause him any problems. I put to him for comment country information on whether certain individuals may have a profile of interest after requesting asylum abroad, including those who departed unlawfully or have been politically active. He declined to comment. I also note that at the outset of the hearing he informed me that he does not believe he would have any problems with the Vietnamese authorities for any reason. I do not accept that the first applicant sincerely fears he may be harmed in Vietnam in the future because of his protection visa application. In any event, in light of the country information I have referred to, I do not accept the applicants face of real chance of any harm in Vietnam in the reasonably foreseeable future should it become known that they applied for protection visas in Australia.
Conclusions
Both applicants expressed to me that they wish to return to Vietnam next year, and that they does not have any problems with the Vietnamese authorities. Both indicated that despite what was written in their visa applications, they never opposed or protested the Vietnamese government.
For the reasons set out above, I have not accepted that their [business] ever caused either of them to be of any adverse interest to the authorities in Vietnam for any reason. As such I do not accept that either applicant faces a real chance of any harm for any reason related to the [business] in the reasonably foreseeable future in Vietnam.
I accept that the applicants would return to Vietnam after applying for a protection visa in Australia. Based on their vague, shifting and divergent evidence, I do not accept that either sincerely fears they may be harmed in Vietnam in the future because of this application. As set out above, and given the referenced to country information, I do not accept the applicants face of real chance of any harm in Vietnam in the reasonably foreseeable future should it become known that they applied for protection visas in Australia.
I am not satisfied that either of the applicants have a well-founded fear of persecution for any s.5J(1)(a) reason. I am not satisfied that the applicants face a real chance of serious harm in the reasonably foreseeable future for any reason were they to return to Vietnam. The applicants are not refugees per s.5H.
A ‘real risk’ and ‘real chance’ involve the same standard.[3] For the reasons set out above the applicants also do not face a real risk of any harm, including treatment amounting to significant harm, in Vietnam in the reasonably foreseeable future. I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk either of them will suffer significant harm.
[3] MIAC v SZQRB (2013) 210 FCR 505.
I am not satisfied either of the applicants are a person in respect of whom Australia has protection obligations under s 36(2)(a) or s.36(2)(aa).
As the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations, it follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Michael Simmons
Member

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

[2024] AATA 4331

07 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction