1907483 (Refugee)

1907483 (Refugee) [2024] AATA 4225 (17 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907483
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Alexander Reilly
DATE:17 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2024 at 12:08pm

CATCHWORDS
REFUGEE – Protection Visa – Vietnam – applicant was properly invited to a hearing – failed to attend hearing – threatened by the Vietnamese police – no supporting documents or evidence – protests about China’s invasion of the Spratly Islands – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 425, 426, 499
Migration Regulations 1994, Schedule 2

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 5 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Vietnam, applied for the visa on 31 May 2018. The delegate refused to grant the visa. The applicant sought a review of the delegate’s decision.
The Tribunal made contact with the applicant by email on 18 April 2024 with a blank pre-hearing information form requesting that the applicant provide a phone contact number. The Tribunal did not receive a reply to this email.
The Tribunal made further contact with the applicant by email on 2 May 2024 inviting him under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 6 June 2024 at 9.30am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
At 11.50am on 5 June 2024, the day before the hearing, the applicant responded to the hearing invitation by email requesting an adjournment for the following reason:
I am not ready for the final hearing tomorrow. I need a lawyer to attend the hearing with me but I have difficulty finding one because I do not have enough money. Please postpone the hearing for 4 weeks so that I can continue to find a legal aid lawyer.
The Tribunal sent an email to the applicant at 1.54pm on 5 June 2024 declining the request for an adjournment. The Tribunal indicated that the hearing would provide the applicant with an opportunity to explain his situation and, if appropriate, to make the request for an adjournment in person. The Tribunal also repeated the earlier request for the applicant to provide his best contact phone number to the Tribunal.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place for the hearing. The Tribunal waited for 30 minutes for the applicant to appear, and then cancelled the hearing and dismissed the application under s 426A(1A)(b) of the Act.
On 20 June 2024, on the last day of the prescribed period, the applicant applied for reinstatement. In the request for reinstatement, the applicant reiterated the need to seek legal advice. He stated that ‘I really need a lawyer to help me prepare my case for hearing because I do not know how to do so’. The applicant provided no reason why he did not attend the hearing. Nevertheless, the Tribunal granted the request for reinstatement because of the five year gap between the date the applicant applied for a review of the delegate’s decision and the date the Tribunal invited the applicant to attend a hearing. The Tribunal accepted that applicants for a Protection visa with no legal advice may not understand the potentially grave implications of not attending a hearing.
On 20 June 2024, the Tribunal invited the applicant to a further hearing on 15 July 2024 at 1.30pm. When the Tribunal did not receive a response to the hearing invitations it sent a further email on 8 July 2024. This email once again requested that the applicant provide his best contact telephone number.
The Tribunal did not hear from the applicant prior to the hearing on 15 July 2024, and the applicant did not attend the hearing. At 1.47pm, during the hearing, the Tribunal contacted the applicant by email inquiring whether he was planning to attend the hearing. The Tribunal waited until 2.00pm for the applicant to appear and then cancelled the hearing.
On 15 July 2024 at 2.04pm, 4 minutes after the Tribunal had cancelled the hearing, the Tribunal received an email from the applicant in response to the Tribunal’s email of 8 July 2024 reminding the applicant about the hearing. In the applicant’s email, he stated:
I am very sorry but I have not been able to find a lawyer to help me with the hearing.
I do not know what to say at the hearing.
Please give me another 4 weeks so that I can continue looking for a lawyer.
Thank you for your understanding.
Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5). The applicant was invited to attend hearings on 28 May 2024, 1 July 2024 and 15 July 2024. The applicant did not attend any of these hearings. On each occasion, the applicant has claimed that he needed legal advice before attending a hearing. The applicant was first notified of a hearing date on 2 May 2024, meaning that by the time of the third hearing he has had 2 months and 13 days to seek legal advice. The Tribunal made it clear prior to the first hearing date of 28 May 2024 that the applicant needed to attend the hearing whether or not he had legal representation. The Tribunal indicated at this time that it was open to discussing the applicant’s need for an adjournment.
In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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
Applicant’s claims
In his application for a Protection visa, the applicant states that he was born on [date]. He has a partner born in [year], and two sons born in [year] and [year]. He has a mother, father, sister and brother living in Vietnam, and an aunt who is an Australian citizen.
The applicant travelled to Australia on a Sponsored Family visa on [date] November 2017 and applied for a Protection visa on 31 May 2018. The delegate refused the application on 5 March 2019.
In his application for a Protection visa, the applicant made the following claims:
I was threatened by the Vietnamese police for expressing my concerns about China's invasion of Spratly and Paracel islands and the facts that the Vietnamese authorities did not take necessary actions to stop such invasion.
I would suffer harm and mistreatment from the Vietnamese authorities. Further details will be provided.
As the Vietnamese Communists would not want to upset the Chinese Communists, they would carry out tough measures to oppress Vietnamese people who dare to stand up against China's invasion.
No supporting documents or evidence were provided with the application. The applicant answered ‘no’ to questions in the visa application asking whether he had ever applied for refugee status or protection in another country, whether he had been charged with any offence awaiting legal action, whether he had been the subject of an arrest warrant, whether he was aware of being the subject of a criminal investigation or whether he had criminal charges pending against him.
Delegate’s decision
The Delegate refused the application on the basis that the applicant was a political activist with a low profile and would at best be detained for one day and then released if he returns to Vietnam. The delegate concluded that this was insufficient harm to amount to persecution.
The applicant has not provided further information to substantiate his claims since the decision of the delegate.
Country information
The DFAT Country information Report Viietnam, states the following about the risk of expressing political opinions in Vietnam:[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 11 January 2022.
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy
….
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.
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.
…..
3.57 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.
The Spratly and Paracel Islands are located in the South China Sea. They are part of a long running territorial dispute involving China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei. BBC News provided a brief history of the dispute in the South China Sea in a report in 2023, which included the following information:[2]
[2] BBC News, ‘What is the South China Sea Dispute?’ 7 July 2023, largely uninhabited, the Paracels and the Spratlys may have reserves of natural resources around them.
….
In 1947, China issued a map detailing its claims, and insists history backs up its claims - Beijing says its right to the area goes back centuries to when the Paracel and Spratly island chains were regarded as integral parts of the Chinese nation.
….
Vietnam hotly disputes China's historical account, saying China had never claimed sovereignty over the islands before the 1940s. Vietnam says it has actively ruled over both the Paracels and the Spratlys since the 17th Century - and has the documents to prove it.
…
The most serious trouble in recent decades has flared between Vietnam and China, and there have also been stand-offs between the Philippines and China. Some of the incidents include:
In 1974, the Chinese seized the Paracels from Vietnam, killing more than 70 Vietnamese troops. In 1988, the two sides clashed in the Spratlys, with Vietnam again coming off worse, losing about 60 sailors.
19 January 2024 marked the 50^th anniversary of the Chinese occupation of the Paracel Islands. On the anniversary, the government of Vietnam denounced China’s occupation of the islands. Radio Free Asia reported:[3]
In a rare strongly-worded statement over the weekend, a Vietnamese spokeswoman said, “Every act of threatening or using force in international relations, especially the use of force to resolve territorial disputes between states, is in complete contravention of the fundamental principles of the United Nations Charter, and in serious violation of international law.”
Pham Thu Hang was responding to a reporter’s query on Vietnam's position concerning what Vietnam’s state news agency calls “China's invasion of the Hoang Sa Islands in 1974,” using the Vietnamese name for the islands.
In a separate report in 2023, Radio Free Asia stated that ‘Vietnam has been developing a reef in the Spratly islands in the South China Sea, expanding its reclaimed area more than four times in less than a year, satellite imagery shows.’[4]
[3] Radio Free Asia, ‘Vietnam Denounces China’s Occupation of islands in 1974’, 22 January 2024, Radio Free Asia, ‘Vietnam rapidly builds up South China Sea reef’ 6 November 2023,
Assessment of the applicant’s claim for protection
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.[5]
[5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[6]
[6] Sun v MIBP [2016] FCAFC 52 at [69].
The applicant claims to have been ‘threatened by the Vietnamese police for expressing his concerns about China’s invasion of Spratly and Paracel Islands’. He fears that if he returns to Vietnam he will ‘suffer harm and mistreatment from the Vietnamese authorities. His fear of harm is based on the applicant’s assessment that ‘As the Vietnamese Communists would not want to upset the Chinese Communists, they would carry out tough measures to oppress Vietnamese people who dare to stand up against China's invasion’.
The Tribunal accepts that the applicant fears retribution for expressing his concerns about China’s invasion of the Spratly and Paracel Islands. However, country information makes it clear that the Vietnamese government itself is now prepared to directly critique China’s claims to sovereignty over the Islands. Given the government’s position on the territorial dispute aligns with the applicant’s, the Tribunal concludes that protests about China’s invasion of the Spratly Islands is unlikely to be viewed negatively by the authorities. If the authorities were concerned about such protests, country information suggests such protests would not be considered ‘sensitive’.
As a result, the Tribunal concludes that it is highly unlikely that the applicant will be of interest to the Vietnamese authorities if he were to return to Vietnam. The Tribunal is not satisfied that the applicant faces a real chance of harm from the Vietnamese authorities for expressing his concerns about China's invasion of Spratly and Paracel islands and the fact that the Vietnamese authorities did not take necessary action to stop the invasion.

The Tribunal also considers that the applicant will not be of interest to the authorities as a result of making a claim for a Protection visa in Australia. The DFAT Country Information Report Vietnam states that:[7]
Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 11 January 2022, para [5.25].
As the delegate noted, the applicant successfully obtained a passport and was permitted to leave Vietnam legally to travel to Australia. The Protection visa application states that the applicant’s passport expires on [date] 2027. The applicant will be able to travel freely back to Vietnam without applying for new travel documents. The Tribunal is satisfied that the applicant will not be interrogated by the Vietnamese authorities on his return, and therefore is not at risk of harm for applying for a Protection visa in Australia.
Given that the Tribunal concludes that the application faces no real chance of harm for expressing his views about the Vietnam and China dispute in relation to the Spratly and Paracel Islands or for seeking protection in Australia, the Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The ‘real risk’ element of the test in s.36(2)(aa) is the same as the ‘real chance’ element in s 36(2)(a).[8] Just as the Tribunal concludes there is not a real chance that the applicant will suffer serious harm for a refugee reason, the Tribunal is satisfied that there is not a real risk that the applicant will suffer significant harm if he returns to Vietnam.
[8] MIAC v SZQRB [2013] FCAFC 33.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alexander Reilly
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 4225

17 July 2024

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