1908339 (Refugee)

1908339 (Refugee) [2023] AATA 4325 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Hoang
CASE NUMBER: 1908339

COUNTRY OF REFERENCE: Vietnam
MEMBER:Mark O'Loughlin
DATE:20 September 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2023 at 11:37am

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – opposition to the government – Catholic political dissident – political protests in Australia – social media activity – economic conditions – detention – physical assault – escaping custody – association with Viet Tan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 48, 65, 91, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MIMCMSMA v CBW20 [2021] FCAFC 63
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 decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant was born on [date] and is a national of Vietnam.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Consistent with the interpretation of the law at that time, the applicant was thought to be an “unauthorised maritime arrival” (a “UMA”).
At that time s 91K of the Act contained a bar against UMA’s making applications for most visas (including a permanent protection visa such as a Safe Haven Enterprise Visa (or SHEV visa)). Because he was thought to be a UMA, that bar was taken to apply to the applicant.
On 15 October 2014 the applicant was granted a Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa and a 12 month bridging visa. Those grants were thought to trigger the statutory bar in s 91K of the Act against the making of other types of visa applications in Australia.
According to the interpretation at the time, after April 2015 the applicant was assumed to be barred from applying for a SHEV by reason of s 46A.
By letter of 13 July 2016 the Minister purported to lift the bar under s 46A and invited the applicant to apply for either a Temporary Protection visa or a SHEV.
Pursuant to that invitation the applicant applied for a Safe Haven Enterprise visa on 5 October 2016 – the first application. The applicant was advised by letter of 6 October 2016 that this application was valid.
The first application for a Safe Haven Enterprise visa was refused by the delegate on 18 May 2017. The delegate refused to grant this visa because they were not satisfied that the applicant is a person of interest to Vietnamese authorities or that he is suspected by them of opposing the Vietnamese government.
The applicant applied to the Immigration Assessment Authority (IAA) for review of that decision.
The IAA affirmed the delegate’s decision and the applicant sought Judicial Review of that affirmation [in] April 2018.
Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant was understood not to have been an ‘unauthorised maritime arrival’. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Rather, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The Minister withdrew from the Judicial Review application. On 22 March 2019 the applicant was renotified of the delegate’s decision of 18 May 2017 and advised of his right to seek review of that decision in this Tribunal.
The applicant made a valid application to the Tribunal for review of that decision on 5 April 2019. This decision relates to that application for review.
The Minister later purported to lift the bars in s 91K and s 48A against the making of a further Protection visa application in Australia and the department notified the applicant of the lifting of those bars by letter of 22 October 2020.
The applicant made a second application for a Safe Haven Enterprise visa on 28 October 2020.
The second application for a Safe Haven Enterprise visa was refused by the delegate on 15 March 2021. The delegate was not satisfied that the applicant faced relevant harm because of his work for the Vietnamese police, because of his family business having attracted the attention of the authorities, because of his Catholic religion, for being a failed asylum seeker or his religious or political activities in Australia or because of a data breach. On 22 March 2021 the applicant applied for review of that decision.
The Full Federal Court in MIMCMSMA v CBW20 [2021] FCAFC 63 found that the Temporary Safe Haven (Subclass 449 - Humanitarian Stay) visas granted in Ashmore affected cases such as the subject application, were invalid. That meant that they did not invoke the s 91K bar on applicants making valid applications for visas such as that sought in the first application.
The effect of this is that, because the s 91K bar did not apply to this matter, the Minister’s purported lifting of the bar in October 2020 was not valid.
Further, the court found that the lifting of the s 48A bar was also invalid.
At the time of the second application the applicant was a non-citizen who, while in the migration zone had made an application for a protection visa and that application had been refused (albeit not finally determined) and who was a non-citizen in the migration zone at the time of the second application.
The second application was therefore subject to the s 48A bar and was not a valid application.
As the Tribunal has taken the view that the second application is invalid pursuant to the reasoning of the Full Federal Court in MIMCMSMA v CBW20 [2021] FCAFC 63, the applicant has consented to the evidence and claims raised in the second application being considered by the Tribunal as though they had been raised in relation to the first application.
The applicant appeared before the Tribunal on 28 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
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). To succeed, this applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he 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.
The applicant does not claim to satisfy the criteria in s 36(2)(b) or (c) and there is no evidence to suggest that he does. The Tribunal is therefore satisfied that the applicant does not satisfy s 36(2) (b) or (c) and will only succeed if he satisfies s 36(2)(a) or (aa).
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. This is known as the “refugee criterion”.
A person such as this applicant who has a nationality, is a refugee if 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).
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 (referred to collectively as “refugee reasons”), 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, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
The applicant has set out his claims in various ways.
First Interview
The applicant was interviewed on 5 May 2013 when he arrived in [City 1].
When he was asked why he had come to Australia he said he worked in Vietnam but was paid so little do he came to Australia to work to support his family. He denied that there were any other reasons for leaving Vietnam.
He said his mother and brother had been involved in political protests in relation to the Church but did not claim to have participated himself. He said if he is returned to Vietnam his family will suffer financial difficulties because his father was no longer alive and his mother had mortgaged her property to pay for him to leave Vietnam.
He later provided a statement in Vietnamese, a partial translation of which says he cannot return to Vietnam because of the risk of being arrested and beaten.
Statutory Declaration 14 September 2016
The applicant set out his claims and contentions in a statutory declaration dated 14 September 2016.
He noted that he had been interviewed about his protection claims.
He acknowledges that when he first arrived in Australia he had said that he fled Vietnam because “it was very hard work and you make very little money in Vietnam”. He further acknowledged that he needed to repay family debts and wanted to find work in Australia so he could send money back to Vietnam.
In paragraph 6 of the statutory declaration, he seeks to clarify by saying that, although the earlier statements about the difficulty making money in Vietnam are true, his decision to come to Australia was not financially motivated.
He said he did not give a full explanation of his reasons for leaving Vietnam at his original interview because he was mentally unstable and because he had been told that the interpreters in the departmental interviews were corrupt and would report to the authorities in Vietnam.
He also said he wanted to emphasise that he was concerned about his family in Vietnam and when he was answering questions in the interview, his focus was on that.
He acknowledged that he had previously signed a document saying he consented to being returned to Vietnam but said that he was frightened and confused when he signed it and only did so because he believed it would put him in a good position to escape from Vietnam again and seek protection elsewhere.
His claims begin at paragraph 12 of the September 2016 declaration.
What he describes as his “primary claim” is that he paid to secure a job with the local police in Da Lat province as [occupation 1] [an occupation 1].
His employer made him engage in police work including capturing thieves and drug dealers.
This work was dangerous, and he complained to the police that it was not part of his job.
He was told he could leave if he did not like it, so he asked that the 20 million Vietnamese Dong he had paid to get the job be returned. An argument ensued and he was arrested and charged with being disruptive in public. He was imprisoned, beaten and interrogated.
He was able to break out that night and he fled to his home village. His family helped him get some money together to flee to Australia.
He heard that the local police had started looking for him.
He believes that if he returns to Vietnam he will be imprisoned, beaten, and tortured.
He does not believe he will be able avoid this fate by relocating, as the threat comes from the authorities.
He bases his fear on his experience of the actions of the Vietnamese authorities and cites the experience of his family who were involved in a protest about redevelopment of a local market in 2008. He says other protesters were arrested and harmed and some were locked up for years.
Although his parents only suffered minor injuries, they were deprived of their market stall and therefore of their livelihood. He says it is common knowledge that the market management monitors the protesters.
The applicant says he is not willing to risk the safety of witnesses who can corroborate his claims and that the Vietnamese authorities are known to monitor communications.
He says he believes his brother is under observation by the authorities and a colleague who was also [occupation 1][an occupation 1] in Dha Lat was asked about him by the local police so is too scared to be seen to support the applicant.
Departmental Interview 27 March 2017
The applicant was again interviewed by the department on 27 March 2017.
He said that he was from the Nhge Anh province and before he came to Australia he had been living in [Town 1], in the mountains to in the south of Vietnam.
He said he is Catholic.
He had experience in [occupation 1] and was well known because he had won prizes for it. He had rented a place to [train people in occupation 1] and was establishing a school.
He said that the land he rented belonged to the district but that there was a man who seemed to control it. The applicant described him as the “mayor”.
About a year or two after he had started the school on the land he had rented, the mayor took the land back and put his nephew in charge. He told the applicant he wanted him to catch heroin addicts and dog thieves for the authorities instead of teaching [occupation 1].
The applicant did not want to do that work. It was dangerous and poorly paid.
He said he went to the police station to complain but was accused of opposing the authorities and was arrested.
He was held in a room attached to the police station where he was beaten and interrogated and again told to go and catch heroin addicts and people who stole dogs. That evening he managed to break out through a window which he smashed with a chair when the guard went to sleep.
The applicant said this incident was what motivated him to leave Vietnam.
He said after he broke out of detention he made his way back to his home village, a journey of about 1,000 km. There his family were able to arrange and pay for him to escape to Australia.
He denied that he had come to Australia for economic reasons and said he believes that if he returns to Vietnam he will be arrested and beaten, possibly beaten to death, by the police.
He did not believe he would be safe anywhere in Vietnam.
The applicant was advised that if he thought of anything else he wanted to say he could provide a further statement setting it out.
The applicant did not make any further submission before the delegate’s decision on 18 May 2017.
Representative’s submissions to IAA and Statutory Declaration 13 June 2017
The applicant’s representative made submissions to the IAA which were provided under cover of an email of 14 June 2017, and accompanied by a further Statutory Declaration dated 13 June 2017 and other supportive evidence.
Under the heading “Application of s473DD” on the first page, the submissions assert that the applicant’s religious and political activity in Australia will contribute to the persecution he will face in Vietnam if he returns.
The submissions suggest that these matters were not raised earlier because they were less significant before a crackdown by the Vietnamese government on dissidents like the applicant[1].
[1] Page 1 of submissions of [named migration agents] at par. No. 1.
They also say there had been a problem with the interpreter at the interview on 27 March 2017, which denied the applicant the opportunity to present evidence about his religious and political activities in Australia[2].
[2] Ibid par. No. 2.
The submissions go on to criticise the delegate’s adverse views on the applicant’s credibility.
They say the applicant’s political opinion is that of a Catholic political dissident and activist who opposes the Vietnamese government, and protests against their handling of the Formosa toxic waste spill in his home province[3].
[3] Ibid third page, at about .3.
The submissions say that his refusal to comply with the demands of Vietnamese authorities in Vietnam as already detailed by the applicant provide the first part of the basis for the applicant’s fears.
That is built upon by the applicant’s participation in protests in Australia, his display of the South Vietnamese flag demonstrated in his initial application, his participation in black Friday events in Australia, his sharing of anti-government articles on social media and the fact that he fled Vietnam.
The submissions suggest that the delegate implicitly accepted the evidence about the applicant’s attendance at the Formosa protests in Australia[4]. This assertion does not appear to be sustainable. The delegate, at the second paragraph of page 4 found that the applicant had not claimed to be part of any religious or political groups in Australia. Further, there does not seem to have been evidence of the applicant’s participation in the Formosa protests presented by the time of the delegate’s decision.
[4] Ibid, third page at about .6
The representative summarises the factors that would lead to the applicant being viewed by Vietnamese authorities as having an anti-government political opinion thus:
1.The Vietnamese authorities would reasonably infer from [the applicant] fleeing Vietnam that he opposed the Government and was seeking asylum on that basis.
2.[The applicant] is a practicing Catholic from the Nghe Anh area who has participated in the Formosa protests in Australia.
The submissions say that country information demonstrates that those identified as having participated in the Formosa protests have been subjected to harassment and arrests. The submissions say that the applicant has participated in protests and has displayed the flag of South Vietnam at protests and is thereby subjected to a greater risk.
The submissions assert that the applicant has “…engaged in significant political and religious activity in Australia.”[5] The Tribunal accepts that some forms of political protest may attract relevant harm at the hands of Vietnamese authorities, but finds this will only be if the applicant has attracted the attention of the Vietnamese authorities.
[5] Ibid fifth page at about .5

In the statutory declaration attached to the submissions the applicant addresses his concerns about the delegate’s adverse findings about his credibility. He says his presentation at the interview was affected by his lack of education and his nervousness.
He also says he had been subjected to conflicting information about how to present, which left him “struggling and reeling”.
He expressed concern about the data breach and the presence of Vietnamese officers at the detention centre.
In relation to his escape from custody in Vietnam he clarifies that he was not held in a cell but in a small room and so his escape was relatively easier.
He repeats his belief that the authorities pursued him after his escape, suggesting that is why he hid and observing that they would have been in plain clothes, so it is hard to know if he was being watched.
He also said he was very worried during his time at large, despite having contacted his family.
He asserts that he is a member of the [named] Catholic Community Church and provides a letter confirming that. The Tribunal has regard to this letter and accepts what it says as the truth.
The applicant asserts that he was asked whether he was a member of an anti government terrorist group in Vietnam which he was not. He believes that due to confusion with the interpreter he was wrongly represented as having said he was not politically or religiously active while in Australia. The Tribunal accepts that the applicant has raised claims that he has been politically active in Australia and that some of that activity has been associated with the church.
He says he regularly participates in political activities organised through [a named] Community Centre.
The flag of South Vietnam is generally flown at these events, which is illegal in Vietnam. The Tribunal accepts that this is the case.
He says that his participation in protests about the Formosa toxic waste spill has made his situation much worse.
He feels strongly about this issue, which relates to protests about the distribution of compensation paid by a Taiwanese company for polluting a part of Vietnam.
He said his participation in the protests was very risky because he does not have permanent residency.
He said that his experience of the freedom of life in Australia led him to believe he is obliged to stand up for what is right and speak out against abuses in Vietnam.

100. He assumes the Vietnamese government is aware he is in Australia because of the data breach and the attendance of an A18 officer in the detention centre. The Tribunal understands A18 to describe the Vietnam Immigration Department.
101. He believes that if he his returned they will research him and discover that he participated in the protests.
102. Because he has appeared in photographs with the South Vietnamese flag he will be viewed as a dissident.
103. That means he will be subject to monitoring, arrest, interrogation, beating and torture. He believes he will be imprisoned for many years.
104. The applicant also provided screenshots that he says show him at various events. He says some of those shots have been posted to social media.
Second SHEV Application 28 October 2020
105. In the second SHEV application the applicant repeated the claims he had made in the first SHEV application.
106. The same information that had been submitted in relation to the earlier claim and the IAA review was resubmitted with the addition of a translation of a statement of support from a Buddhist monk from whom the applicant had sought help after he escaped from detention in Vietnam.
107. The statement was dated 15 March 2018. The monk states that the applicant came to him very scared after escaping the detention centre. He wanted to escape from [Town 1] so the monk took him to a bus station.
108. The monk said the police came and threatened him in an effort to locate the applicant, but he did not tell them anything. After that he was scared so he left [Town 1] and returned to his home town.
Submissions and Statutory Declaration of 24 February 2023
109. The applicant and his new representative provided further submissions and a further statutory declaration in preparation for the hearing of the matter by the Tribunal.
110. In these submissions the applicant claims, for the first time, a “close association with Viet Tan”. Some photographs were provided for the purpose of illustrating that association.
111. The submissions refer to country information that shows that Viet Tan is considered by the Vietnamese authorities to be a terrorist organisation. The Tribunal is satisfied that that is so.
112. The submissions also cite several instances of persons being detained and punished for associating with Viet Tan and entering Vietnam with the intention of working on their behalf[6]. The Tribunal accepts that the report shows that some people have been arrested in Vietnam by reason of being active members of Viet Tan.
[6] Submissions 24 February 2023 at paragraphs 5 to 10 inclusive.
113. The submissions say “DFAT reports 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.”[7]
[7] Ibid. paragraph 11
114. The Tribunal accepts that the current DFAT report does say:-
“…it is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination.”[8]
[8] DFAT Country Information Report Vietnam January 2022 at 3.64

115. Although low level users may be tolerated, they also face fines, arrest and prison sentences[9].
[9] Ibid 3.63.
116. The submissions also say, at paragraphs 13 to 15, that the applicant’s “close affiliation” with Viet Tan means he is likely a person of adverse interest to the Vietnamese authorities and that he therefore faces relevant harm and would not be able to relocate or modify his behaviour to avoid such harm.
117. The Tribunal accepts that a person who is identified as being associated with Viet Tan may face harm in Vietnam. To assess this claim the Tribunal will need to consider the applicant’s link to Viet Tan and the authorities’ likely assessment of that link.
118. The submissions say that the applicant would continue anti-Vietnamese government activities if he returned to Vietnam.
119. The submissions further say the applicant has been accessing the Viet Tan Facebook page and sharing items from it on his own social media.
120. They also refer to the establishment of a “cyber unit” by the Vietnamese government, referred to in the supplied country information as “Force 47”[10]. The Tribunal notes that the article says the focus of the unit appears to be domestic users rather than international users like the applicant.
[10] “Vietnam unveils 10,000-strong cyber unit to combat “wrong views”. Reuters 27 December 2017.
121. From paragraphs 16 on the submissions assert that the Vietnamese government monitors online activity and prosecutes dissidents including bloggers and Facebook personalities.
122. The submissions do not assert that the applicant is a blogger but do say he has been active on Facebook, including sharing items from the Viet Tan page.
123. At paragraph 18 the submissions refer to Nguyen Duy Linh who was arrested and sentenced to 5 years’ imprisonment in 2021. The submissions say that there were 37 other people also arrested and sentenced to between 5 and 10 years. The submissions say that online commentators were also persecuted.
124. The submissions say that the applicant has shared a “large number” of articles from Viet Tan’s official Facebook page. They also say he has reposted contents and opinions opposing the Vietnamese government. They say there is a real chance the Government has monitored these posts and could identify the applicant as a strong supporter and member of Viet Tan.
125. At paragraph 20 the submissions say that in 2020 Vietnam was ranked 175^th out of 180 countries on the World Press Freedom index and that 29 activists were arrested for writing posts online. The submissions say this is reported as having been more than 300 people in 2022.
126. The submissions say that the number of people imprisoned for 5 year terms has increased substantially and that prisoners are often held for months without trial and are denied legal representation at trial.
127. There is a report of 4 October 2016 indicating that the Vietnamese government has declared the Viet Tan a terrorist organisation.
128. The Tribunal is satisfied that that Viet Tan has been declared a terrorist organisation.
129. There is a further article of 28 July 2017 stating that judgments (and apparently convictions) have been entered against a number of Viet Tan leaders. The Tribunal is satisfied that leaders of Viet Tan who go to Vietnam risk being arrested. The applicant does not claim to be a leader of Viet Tan. The applicant does not claim to be a member of Viet Tan. The Tribunal is not satisfied that the applicant is a leader of Viet Tan.
130. There is an article from the ABC news of 26 November about an Australian citizen, Van Kham Chau, who was arrested and charged with terrorism and sentenced to 12 years in prison when he returned to Vietnam which he had left as a refugee in 1982.
131. Chau is reported as having been an outspoken human rights advocate at rallies. It is not clear whether this was a factor in his arrest although that seems likely.
132. There is also an article dated 25 June 2017 about a blogger named Pham Minh Hoang who was exiled from Viet Nam having joined Viet Tan and apparently been accused of trying to overthrow the government.
133. The applicant provided a report entitled “Vietnam’s Prisoners of Conscience – 2022 Report” which states that people have been arrested and sentenced to long periods of detention in prison for activism.
134. There is an article from Civicus of 29 June 2022 in which the convenors of an organisation called “The 88 Project” assert that the Vietnamese government has cracked down on political dissent in the four years to 2021. The people who have been imprisoned are leaders of groups advocating for the environment,
135. The article also refers to a journalist-activist and political prisoners such as Hmong activists.
136. The thrust of the article appears to be concerns about the treatment of political prisoners and the possibility of them being tortured. The article does not suggest that a person with the applicant’s profile is at any particular risk.
137. The applicant’s statutory declaration of 24 paragraphs is dated 24 February 2023.
138. The applicant claims to risk relevant harm because:
1.He is a close supporter of Viet Tan and will be blackilsted, detained, and imprisoned on charges of “anti government” activities if he returns to Vietnam.
2.He is a Facebook blogger and has posted and shared information aimed at raising awareness and exposing the Vietnamese government’s corrupt agenda and human rights violations. The applicant describes his postings as “constant”.
3.He says he is involved in other political organisations in Australia and attends events that are often live streamed and monitored by the Vietnamese government.

139. He said that he started political activism in Australia after he became a member of a local Catholic church in about November 2014.
140. He said he has attended a “Fall of Saigon” protest organised by the Vietnamese community and where the flag of the Republic of Vietnam was flown. That flag is illegal in Vietnam.
141. He said he also attended to protest the Vietnamese government’s handling of the Formosa toxic waste spill.
142. He said his connection with Viet Tan increased and he was invited to some events that they organised.
143. He says in Vietnam people who associate with groups opposing the government are subjected to extreme persecution.
144. He says he is aware that attending these political protests has a risk but believes it is right to speak out.
145. In relation to his blogging activities, he says all sharing of political information is monitored. He said his friends encouraged him to use Facebook to share sensitive political information against the Vietnamese government and he has published “many” such comments.
146. He says he aims to raise awareness in Vietnam and that most of his posts are taken from Viet Tan’s Facebook page.
147. He believes it is likely that this activity has been monitored by the Vietnamese authorities.
148. He says his political opinions are widely shared. He does not say how he knows this to be the case.
149. He asserts that he cannot avoid the authorities, which are nationwide, nor can he seek protection from them. The Tribunal accepts that if the applicant is a target of the Vietnamese government, protection will not be available from the authorities, nor will he easily be able to avoid them by relocating in Vietnam.
150. The Tribunal observes that the applicant’s submissions and statutory declaration do not refer to any other claims such as his involvement with the Vietnamese authorities or his Catholic religion.
Evidence to the Tribunal 28 February 2023
151. The applicant adopted the statutory declaration of 24 February 2023 which he explained was translated to him by his lawyer.
152. He told the Tribunal that he cannot return to Vietnam because of his membership of the political party.
153. He clarified by saying he is not a member of Viet Tan, but the Vietnamese government will associate him with that organisation.
154. He said that despite not being a Viet Tan member, he shared some articles from them so the Vietnamese Government will probably think he is.
155. The Tribunal asked how he knows the government will think that. He said they monitor the internet.
156. He was asked if there are any other reasons he does not want to go back to Vietnam. He said when he was in Vietnam he had an agreement with the police to teach [occupation 1].
157. After he had done that for 2 months the mayor had given him further duties. They wanted him to arrest drug users and dog thieves. He said these duties were dangerous, and he did not want to do them.
158. After he refused to do that work his relationship with the mayor broke down, so he asked for his 20 million dong bribe to be repaid.
159. The mayor then accused him of disobedience, and he was detained in a room at the police station. He was there for about 18 hours and escaped at about 2.00 am by breaking a window. He was scared so he returned to his place of origin, Nghe An which was about 2 days away by bus.
160. He said these events occurred at the end of February 2013.
161. He believes that, despite 10 years having passed, they will still arrest him because of his activities as a blogger.
162. There was some discussion about the applicant’s ongoing fears. The Tribunal asked whether the problems with the police from February 2013 are still a significant issue for the applicant. Tribunal observed that the applicant’s evidence now suggests that his fears arise from his association with Viet Tan rather than what happened while he was living in Vietnam.
163. The hearing was paused at that point and when it resumed 10 minutes later the Tribunal again asked whether the applicant holds fears because of his dealings with the police in 2013.
164. He said he was scared and escaped and that in the last 10 years his family had often mentioned that the police had come looking for him.
165. The Tribunal asked the applicant to clarify and ultimately, he said he did not ask his family whether the police pursued him because they did not report any police attention, so he was not worried about it.
166. The Tribunal summarised his evidence as being that he is no longer worried about the incident with the police, but he is worried about his association with Viet Tan. The applicant agreed with that.
167. The Tribunal asked if there is anything else that makes him worried about returning to Vietnam. He said he does not want to return because they think he is in Viet Tan.
168. The Tribunal aske the applicant about his activities as a “blogger”. He said he means the items from Viet Tan that he shares on Facebook.
169. He said he does that because he wants Vietnamese people to understand about the wrong things the Vietnamese government does.
170. He also does it to raise the same issues with people overseas in the hope they will share the information and ask for freedom in Vietnam.
171. The Tribunal asked the applicant whether his Facebook posts have had any effect. He could not say.
172. The Tribunal asked the applicant whether it helps the cause of raising awareness if he reposts items from the Viet Tan website. He said when he shares the government of Vietnam will think he is supporting Viet Tan and will arrest him.
173. The Tribunal again asked whether his posting of the information had had any impact on the situation. He said he did not know, although he does know many bloggers were arrested and detained.
174. He said that people in Vietnam have direct access to the Viet Tan Facebook page themselves. He said it is better for his friends to access the information through his Facebook page because it is more discreet.
175. He said he believes people will be inspired to protest if they have the information.
176. He did not know whether anyone had protested because of information they had accessed through his page.
177. He was concerned to emphasise to the Tribunal that bloggers who share information have been arrested in Vietnam.
178. The Tribunal asked if those were people who just copied articles onto their Facebook pages or whether they had done more. He said they fought for human rights in Vietnam, and they also mentioned the wrongdoings of the Vietnamese government.
179. Other than the applicant’s testimony, there is no evidence of people being arrested in Vietnam simply for copying articles onto their Facebook pages. The Tribunal has had regard to country information supplied by the applicant in this regard with the submissions of 24 February 2023.
180. The applicant insisted that the authorities will arrest him when he returns because they believe he is a member of Viet Tan and because of the photos of him protesting
181. He said he shares a lot so many people know about him. The Tribunal asked him to estimate how many people he had reached. He estimated “about 700 people”.
182. The Tribunal noted that the posts might show how many people have viewed them. The applicant said he posts daily but does not look to see how many times the posts have been viewed or liked. The Tribunal asked why he does not check. He replied that he does not have time. He said when not posting he spends all his free time praying, so he does not have a chance to check how many views there are of his posts.
183. The Tribunal finds the applicant’s evidence about this to be evasive and unconvincing. Whether or not the applicant can determine how often his posts are viewed, he has not tried to assess that.
184. When discussing this topic the Tribunal observed that the applicant had taken no interest in the effect of sharing the Viet Tan posts on his Facebook page in relation to the stated purpose of raising awareness of others.
185. On the other hand, he was concerned to tell the Tribunal that he might be persecuted for making the posts.
186. On further questioning he said he goes onto Facebook in the evenings in order to read and share posts. He goes onto Facebook every evening.
187. The applicant said he has also attended demonstrations to mark the fall of Saigon on 30 April. He could not remember how many times he had done that but though he had been to “a few”.
188. He had also attended protests about the Vietnamese government’s handling of the Formosa toxic waste spill. He said he had been involved in a protest in 2015 or 2016.

189. He said the last protest he had attended was in 2018 or 2019 which was a demonstration about a government lease to China.
190. He said since 2018 or 2019 he had been restricted from attending protests because he had to work.
191. He believed that photographs of protesters that have been shared to social media would be enough for Vietnamese authorities to identify him and would be enough to prompt them to arrest him if he returns to Vietnam.
192. He did not say how the photographs had been shared. The Tribunal is not satisfied that photographs identifying the applicant have been shared apart from on the applicant’s own Facebook page.
193. He said he has not asked his family in Vietnam if they are being harassed and he is not worried about his parents.
194. He said he speaks to his family occasionally by telephone.
195. The applicant told the Tribunal that he and his representative had discussed the submission that his representative had made on 24 February 2023. The Tribunal observed that the country information provided with that submission was about people with a high profile and who are actively working against the Vietnamese government. The Tribunal asked whether he thought he was at the same risk as these people,
196. The applicant did not suggest that he does have a high profile but said there is a risk to people of lower profile because they do not have the protection of being well known.
197. The Tribunal noted that there are claims that computer hackers attack the phones or computers of activists. The applicant said he thinks hackers tried to get access to his bank account, causing him to get the money out. He did not know whether that was because of activism or was just ordinary cyber-crime. The Tribunal is not satisfied that hackers representing the Vietnamese government have targeted the applicant.
198. The Tribunal observed that generally the country information supplied suggests that the Vietnamese government monitors activity that occurs within Vietnam. The applicant said he will probably be arrested and tortured if he returns.
199. He said he had read that in Vietnam, anyone who shares photos is considered a member of Viet Tan. He said he read that on the internet but could not provide evidence of it.
200. He was asked whether he has any fears by reason of his Catholic religion. He said he does not know what is happening in Vietnam and agreed that he does not fear arrest, threats from the police, or other ramifications of his religion.
201. He said the only fear he holds is that the Vietnamese government will view him as a member of Viet Tan.
Summary of Claims
202. The applicant left Vietnam to come to Australia over 10 years ago. He has made two protection visa applications in which he set out his claims for protection.
203. He has given interviews, made statements, and had submissions made on his behalf in this time. He has also given evidence to the Tribunal.
204. Given the amount of time he has been here, the changes in his circumstances, the changes in Vietnam, and the number of times he has been invited to describe his claims, it is not surprising that his claims have changed. The applicant is not criticised for this, but it is worthwhile setting out what his fears have been and what they were at the time of his Tribunal hearing.
205. When he first came to Australia, he claimed to have left Vietnam because he faced financial hardship.
206. He later clarified that by saying he also worried that he had incurred the disapproval of the police in Vietnam because he refused to help them by arresting drug addicts and dog thieves and because he tried to get the local authorities to repay a bribe.
207. In his evidence to the Tribunal, he agreed that those events were now over 10 years old and no longer give rise to a fear of harm should he return to Vietnam.
208. He said he still feared harm because of his political activism.
209. He does not claim that he was politically active in Vietnam. His activism has all taken place while he has been in Australia.
210. He said the fear he held about his religion is because some of his activism has been conducted in association with a Catholic church here in Australia.
211. In evidence before the Tribunal the applicant confirmed that the only claims he now maintains are that he will be harmed because of his activism since coming to Australia.
212. He said he has attended protests and that photographs of him doing so have been posted online. He fears he those photographs may have been observed by the Vietnamese Government. At some of these protests, the South Vietnamese flag was flown, which increases the chance that the Vietnamese Government will have been alerted.
213. The applicant provided evidence of him participating in protests against the Vietnamese government including protests at which the South Vietnamese flag was flown. The photographs were in a booklet that was provided to the Tribunal in an email of 21 February 2023.
214. Some of the photographs do not show how they were presented on social media. The others are included in a series of screenshots from the applicant’s Facebook page. The screenshots do not show how many times those photographs have been viewed although one, posted [in] December 2016, attracted 30 “likes” so was viewed by at least 30 people but probably more than that.
215. He said his activism has also involved him sharing posts from the Viet Tan Facebook page. He fears that his activity in doing so may have attracted the Vietnamese government’s cyber monitoring branch.
216. He said the risks have been increased by a crackdown on internet activism by the Vietnamese government.
217. He believes that if he returns to Vietnam he will demonstrate against the government and will continue his online activity which will give rise to risk of relevant harm.
218. He said he fears that his profile as a Catholic may make it more likely that the Vietnamese government will investigate him, and his activism will come to light. He has not provided evidence of this.
219. He said he fears he may have been exposed as an activist in a data breach but has not provided evidence about that. He did not identify this claim, nor did he ultimately maintain it The Tribunal is not satisfied that he fears persecution or faces harm by reason of any data breach.
220. The Tribunal notes that the applicant raised a claim before the delegate in relation to a data breach that resulted in dissemination of information that may have identified him as having been in immigration detention, but the applicant has not maintained any such claim before the Tribunal or presented any evidence in relation to that and the Tribunal is not satisfied that any such breach gives rise to protection obligations.
221. To the extent that the applicant has expressed fear that he will be persecuted as a returnee to Vietnam, the Tribunal is satisfied that his claim is that such persecution will arise due to him having participated in activism and so the claim is dealt with in that context.
Consideration and findings
222. The Tribunal is satisfied that the applicant does not now claim to be at risk of relevant harm by reason of his interaction with the Vietnamese authorities a decade ago.
223. The Tribunal is satisfied that the applicant does not now claim to be at risk of relevant harm by reason of his Catholic faith.
224. The applicant has not repeated his claim to face relevant harm by reason of his economic circumstances in Vietnam and further has not provided any evidence in support of that claim. The Tribunal is not satisfied that Australia owes the applicant protection obligations by reason of his economic circumstances in Vietnam.
225. The applicant is concerned that he has drawn the attention of the Vietnamese authorities because of his online presence.
226. The applicant’s online presence is demonstrated by photographs of him attending protests which he says were shared on social media. He participated in a few of these protests, most recently about four years ago.
227. He gives evidence of some such posts from his own Facebook page.
228. The applicant said his online presence also consisted of sharing information on his Facebook page which would be seen as provocative by the Vietnamese government. This information was largely, though not exclusively, taken from the Viet Tan organisation’s own page.
229. The Tribunal has had regard to the evidence the applicant has provided of his online presence.
230. The Tribunal is satisfied that the applicant is depicted on his Facebook page as having participated in protests including protests at which the South Vietnamese flag is flown. The most recent of those protests appears to be about four of five years ago.
231. The Tribunal is also satisfied that the applicant had re posted multiple posts from the Viet Tan Facebook page.
232. The Tribunal is not satisfied that the applicant’s posts have attracted much attention. The applicant acknowledged that in his evidence but said that his low profile may make it easier for the Vietnamese government to pursue him. There is some support for this in the relevant DFAT report.
233. Having considered the evidence presented, the Tribunal is not satisfied that the applicant’s postings are likely to have attracted the attention of the Vietnamese authorities.
234. The applicant further asserted that if he is returned to Vietnam he will feel obliged to continue his online activism and his protest activity. He does not specify what he will do in pursuit of that obligation.
235. The Tribunal has regard to the applicant’s evidence that he had stopped actively participating in demonstrations because he did not want to risk his employment by asking for time off work to do so. His evidence is that he has not participated in any demonstrations for about four years.
236. The Tribunal is not satisfied that the applicant will participate in political protests if he is returned to Vietnam.
237. The Tribunal is not satisfied that the applicant has engaged in the online activity he has described otherwise than for the purpose of strengthening his claim to be a refugee.
238. The Tribunal is not satisfied the applicant will feel obliged to continue to engage in online protest against the Vietnamese government if he is returned to Vietnam.
Refugee Criterion
239. As set out above, for the applicant to satisfy the refugee criterion set out in s 36(2) (a) of the Act, he must satisfy the definition of “refugee” in s 5H. The relevant part of that definition for the purposes of this application is found at s 5H(1)(a).
240. For the applicant to come within that definition the Tribunal must be satisfied that, owing to a “well founded fear of persecution” he is unwilling or unable to avail himself of the protection of Vietnam.
241. To come within the definition of a “well-founded fear of persecution” set out at s 5J(1) the Tribunal must be satisfied that the applicant fears being persecuted for a “refugee reason” being one of the reasons set out in s 5J (1)(a). In this case the applicant fears being persecuted for the reason of his membership of a particular social group, being anti-government activists, and for the reason of his political opinion, being his opposition to the Vietnamese government.
242. In considering whether the applicant has a well-founded fear of persecution for refugee reasons, the Tribunal is directed by s5J(6) of the act to disregard any conduct engaged in by the applicant in Australia unless the applicant has satisfied the Tribunal that he engaged in such conduct otherwise than for the purpose of strengthening his claim to be a refugee.
243. The Tribunal is not so satisfied and disregards the applicant’s protest and activist conduct while in Australia.
244. The applicant does not maintain any claims to fear persecution for any other reason.
245. The Tribunal is not satisfied that there is any other basis upon which the applicant can establish a “well-founded fear of persecution” as defined.
246. The applicant does not therefore satisfy the definition of “refugee” and does not meet the refugee criterion in s 36(2)(a).
Complementary Protection
247. Having found that the applicant does not meet the refugee criterion, the Tribunal must now consider whether he meets the complementary protection criterion in s 36(2)(aa) of the Act.
248. The applicant will meet the complementary protection criterion if the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk he will suffer “significant harm”.
249. In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of s.36(2)(aa) establishes the same threshold as the “real chance” test in s.36(2)(a) in relation to a well-founded fear of persecution[11].
250. The term “real chance” is discussed by Mason CJ in Chan v MIEA [12];
“… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin. ”
251. In this matter the Tribunal is not satisfied that the applicant’s political activity has drawn the attention of the police or that the chance of consequent persecution is substantial rather than remote.
252. The Tribunal is not satisfied that the applicant will engage in “activism” and thereby attract the attention of Vietnamese authorities in the future if he is returned to Vietnam.
253. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk that the applicant will suffer significant harm.
254. In considering this question the Tribunal has had regard to the definition of “significant harm” in s 36(2A) of the Act, which is attached to this decision, and in turn has considered the definitions of “cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, and “torture” in s 5(1) of the Act.
[11] Paragraphs 245 and 246,
[12] Chan v MIEA (1989) 169 CLR 379 at 389.
Conclusions
255. For the reasons given above, the Tribunal not satisfied that the applicant is 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 Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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

258. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
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 4325

20 September 2023

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