1908355 (Refugee)

[2024] AATA 1397

1908355 (Refugee) [2024] AATA 1397 (19 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1908355, 2017523

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jessica Henderson

DATE:19 April 2024

PLACE OF DECISION:  Perth

DECISIONS: The Tribunal remits the decision dated 2 July 2018 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

The Tribunal sets aside the decision dated 3 December 2020 and substitutes it with a decision that the application dated 5 June 2020 is invalid.

Statement made on 19 April 2024 at 6:22pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined and statutory bar does not apply – first application not invalid so second application invalid – no claims raised at entry interview – came to Australia to work to pay parents’ debt – claims raised several months later and expanded subsequently – political opinion – involvement in human rights group – friend arrested and accused of being anti-government – applicant investigated, interviewed and beaten, then monitored and harassed – unlawful departure – organisation activities in Australia – expanding claims over time – passage of time and experience of free and democratic life in Australia – confident presentation and honest responses against interest – real chance of being identified as failed asylum seeker – membership of particular social group – husband and prospective father of Australian citizens – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 48A, 48B, 65, 91K, 427(2)
Migration Regulations 1994 (Cth), Schedule 2

CASE
MICMSMA 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Vietnam.

3. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on arrival in Australia. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

4. The applicant applied for a Safe Haven Enterprise visa on 22 June 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.

5. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 5 June 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.

6. The first application for a Safe Haven Enterprise visa on 22 June 2017 was refused by the delegate on 2 July 2018 and renotified to the applicant on 23 March 2019. The delegate refused to grant this visa primarily on the basis of adverse credibility findings.  An application for review of that decision was made on 5 April 2019.

7. The second visa application was made on 5 June 2020 and refused by a delegate on 3 December 2020. An application for review of that decision was made on 6 December 2020. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

8. Section 427(2) of the Act provides that the Tribunal must combine two or more Part 7-reviewable decisions made in respect of the same person, and accordingly the two applications for review were listed together, with the consent of the applicant.

9. The applicant appeared before the Tribunal on 20 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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

16. The issue in this case is whether the applicant’s fear of persecution by the Vietnamese police, and imputed political opinions, coupled with his illegal departure from Vietnam and the data breach that potentially exposed him as a person held in detention in Australia, is collectively sufficient to expose the applicant to a real chance of significant harm if he returns to Vietnam.

    Entry Interview

17. The applicant’s entry interview did not include any claims of persecution by the Vietnamese police. His claims were that his parents are both unemployed, disabled and unable to work. He also wanted to be able to help his parents and ‘pay back to them’. He came here to work, although did not have a specific job in mind.

18. After he finished school two years prior to his arrival in Australia, he has been unable to find a job. The family was unable to pay ‘the debt’. There was no discussion as to what the debt was, who was responsible for paying the debt or who the money was owed to.

19. His parents sold their house, although it is unclear from the interview whether this was to pay the debt or fund his departure from Vietnam. The applicant states his aunt paid for his trip to come to Australia.

20. He stated that finding a job was the only reason he came to Australia.

21. He stated he had no political affiliations and there was no local group activity, apart from being a Catholic area.

    Written statement dated 15 May 2013

22. Approximately two months after this interview, the applicant wrote to the Department to update his claims for protection. He stated that his failure to disclose the claims at his entry interview was because he was worried the information would be divulged to the Vietnamese authorities and was concerned for the safety of his family, who still reside in Vietnam.

23. The applicant met [his friend – his name has been substituted throughout this decision with the letter [C] at Christmas in 2009. They became close friends, playing football and having coffee at … on Sundays or holidays. They both attended a Christmas party on 24 December 2011 at [a location in] Vinh City. There were Chinese herbal medicines being sold at the house. The police came and arrested 16 people at the party, including [C]. The applicant was not arrested at this time.

24. The police suspected the applicant was involved as he was close friends with [C] and lived near his house. He was investigated ‘many times’ but the police found no evidence against him. The applicant followed [C]’s case closely and, when [C] was put on trial, the police stopped the applicant attending court, arrested him and took a copy of his ID in order to track him. The applicant went with [C]’s sister to campaign for peace prayers for the 14 young Catholics who were still being held in (police custody/detention).

25. After these events, Nghe An police further investigated and tracked the applicant and asked that he come in for an interview. As he had been investigated several times, he became concerned for his safety and worried that the Vietnamese police would charge him with crimes against the Vietnamese Government. He told his parents about the investigations, and it was decided that they would borrow money to find a way for the applicant to leave the country. 

    Protection claims raised in SHEV application dated 14 June 2017

26. The applicant’s protection claims raised in his 2017 SHEV application were as follows:

    a.The applicant fears persecution by the Vietnamese police due to his imputed political opinion.

    b.The applicant’s friend [C] was arrested in Vietnam after being accused of being anti-government on 24 December 2011. Since the applicant and [C] are close friends, the police suspected he was part of the same anti-government group as [C] and he was harassed and monitored by the police. 

    c.The applicant was issued a summons to attend a police interview, but had heard about the brutality of the police so did not respond to the summons and left to live in Ho Chi Minh City in hopes the authorities would not be able to find him. He returned to his hometown for seven months and was issued another summons. He realised he could not escape the summons and harassment from the police, and so travelled to Australia via boat to seek refuge.

    d.He fears that, if he returns to Vietnam, he will be arrested and imprisoned by the Vietnamese police due to their belief that he holds anti-government beliefs and his failure to respond and obey the police summons issued to him. He believes he will be physically assaulted, beaten and indiscriminately detained by the Vietnamese authorities.

    e.While in Australia, he has attended events in [an Organisation], a group who officially opposes the Vietnamese Government. He believes that, as he is already linked to an anti-government group in Vietnam, the Vietnamese authorities will assume these are deliberate actions against them. The penalties for opposing the Vietnamese Government are harsh and he may be imprisoned and beaten. For these reasons, the applicant is fearful for his safety should he return to Vietnam.

    Interview 15 March 2018

27. The applicant’s SHEV application was initially refused and referred to Immigrant Assessment Authority as the applicant was thought to be a ‘fast-track’ applicant at the time. He provided the following additional information:

    a.The applicant was involved in a ‘Human Rights Youth Group’ alongside [C] in Vietnam. They met on a regular basis and talked about a range of social issues. The applicant used to distribute pamphlets relating to human rights within the community.

    b.The applicant was summoned three times to be interviewed by the police and his role within the group. He attended the first summons in March 2012 and was interrogated by police.

    c.He attended the second summons in April 2012 and was physically beaten by the police as they did not believe his story that he was not involved in anti-government activities.  The applicant was admitted into hospital as a result of these injuries and relocated to Ho Chi Minh City to try and escape the police.

    d.The police summoned him a third time in May 2012 and harassed members of his family for his whereabouts. It was at this time he was forced to flee Vietnam.

    e.The applicant attended a Youth Group meeting relating to World Human Rights in 2017 while in Australia.

    f.The applicant also fears harm as an asylum seeker who departed Vietnam illegally.

28. During the course of the interview the applicant requested for the interpreter to leave the room.  He then stated in English that he does not trust people within the Vietnamese community, even in Australia. He stated there are informants everywhere and he cannot trust anyone to represent him properly.

    Submissions to the Department

29. The applicant submitted a number of documents to the Department in support of his claims.

30. The applicant submitted:

    a.six photos of him at what he says is a [Organisation] event. The photos are not dated and they have no descriptions as to who is pictured apart from the applicant.

    b.a translation of a medical certificate dated [April] 2012. It states the applicant had facial injuries, left arm injuries and swelling and his right ear was bleeding. He also had some dizziness. This was stated to be caused by him being beaten on the date of admission.

    c.a translated copy of summons issued to him to attend an interview [in] April 2012 and [May] 2012. They were issued by the Nghe An Police ‘in order to solve the matters relating to [C]’s activities’.

31. The applicant gave little weight to this evidence because of the prevalence of fraudulent documents in Vietnam and the lack of any security features on the documents submitted.

    Protection claims raised in SHEV application dated 5 June 2020

32. The applicant’s claims in his 2020 SHEV application are consistent with his original application. It does not, however, include several of the claims reported in his SHEV interview. He states he did not experience harm in that country (apparently not even the incident where he was allegedly beaten by police). He does not include in the 2020 application that he was issued three summonses, responding to two of them. Instead, he says he left for Ho Chi Minh City when he received the first summons and received the second summons when he returned to his hometown, at which point he made the decision to flee Vietnam.

    Interview on 7 August 2020

33. The applicant was interviewed on 7 August 2020 and provided the following additional information:

    a.The Vietnamese police visited his parents to enquire about the applicant.

    b.The applicant was hit by police when he attempted to visit the court during C’s trial. He managed to escape being arrested, although other were arrested at this time.

    c.The applicant was a person of interest to the police due to his involvement with C’s group, but they did not have enough evidence to arrest him so just monitored him instead.

    d.The applicant was asked to explain his inconsistent statements regarding the number of summons and whether he attended the police station for interviewing. He stated he received summons in 2012 and 2013, but did not attend the interviews, instead hiding at a friend’s house.

    e.The applicant stated that anyone who goes against the Vietnamese authorities would be detailed for at least a few months.

    f.The applicant would also be at risk as a returned asylum seeker as he would be considered a ‘traitor’.

    Facts accepted by the Delegate

34. Relevantly, the Delegate accepted the following claims made by the applicant:

    a.The applicant is a Vietnamese national.

    b.The applicant was in detention on 31 January 2014 and subsequently his personal details may have been accessed on the Department’s website.

    c.The applicant left Vietnam legally and would be returning to Vietnam as a failed asylum seeker.

35. The delegate in respect of the applicant’s first application was also persuaded that they applicant has attended a meeting in September 2017 with a human rights youth group while in Australia.

36. Both delegates relied on country information with respect to activism and returned asylum seekers that is now out of date.

    Hearing before the Tribunal

37. The applicant did not submit any evidence or argument to the Tribunal ahead of the hearing date.

38. During the hearing on 20 November 2023 the applicant gave the Tribunal the following evidence.

    a.He was born in Vietnam to parents who were married to each other.  His parents are both still alive, as are his [siblings].  He is the middle child.

    b.He completed year 12 of high school but did not go to university.  He said that his school reports were good, and he could have gone to university, but didn’t want to. He joined anti-government groups to propagate against the government instead.

    c.He said that his parents were not religious, and he is not religious.

    d.He is married to an ethnically Vietnamese woman who is an Australian citizen.  He first met his wife in 2015, just after his arrival in Australia.  They moved in together in 2020, and he has met her family in Vietnam on Facetime. They were married [in] 2023.  At the time of the hearing his wife was pregnant.

    e.The applicant said that his reason for travelling to Australia was that two friends from his village told him that they had been tortured and he had to find a way to escape. 

    f.The applicant described his travel to Australia and said that it was arranged by an organisation that were paid to assist him.  His mother paid the organisation for his travel.  He flew to [Country 1] from Vietnam and then flew to [Country 2].  From [Country 2] he got on a boat to Australia.

    g.The applicant said he didn’t like how the government of Vietnam was running the country; he hated that there was one party only and no freedom, he resented the total control exercised by the government over everything, including the press.  He said that he had joined an anti-government group straight after his year 12 graduation, and that he had been introduced to the group by someone in his village who had taught him.

    h.The applicant said that he was strongly opposed to the government confiscating land.  He said that it had not yet happened to his family, but that it could happen to his family in his generation or the next.  He was not prepared to watch it happen to others on the blind assumption that his family would never be affected.

    i.The applicant also gave evidence about his friend C that has been redacted from this decision because it might identify the applicant.

1. The Tribunal asked the applicant whether he accepted the delegate’s assessment that there was internal inconsistency during his interactions with the Department. The applicant accepted that his story had changed, and said that when he first arrived he was told not to say that he had had any political involvement or he would be sent back to Vietnam.  He said that he was worried that he would be imprisoned and tortured by the police if he was returned to Vietnam, because the police in Vietnam had told him that if he left Vietnam “see what we do to you” when you get back.

2. The Tribunal asked the applicant whether any of his family in Vietnam had been hurt by the police since he had left, and he said that there had been no physical assault, but that the police came often to his family house to see if he was there.

3. The Tribunal asked the applicant about the discrepancy in his manner of travel and who had arranged it, and the applicant said that he had been assisted by a solicitor’s office in making his 2017 application. The same solicitor had helped him with his 2020 SHEV application.  The applicant said that his early interactions with the Department were influenced by what he had been told in the detention centre, including that ‘if you say you fly they will return you straight away’.  He told the Tribunal that having spent 10 years in Australia he now understood the need to “say everything”.

4. The Tribunal understands from the totality of the applicant’s evidence that he has not resiled from his earlier evidence with respect to his friend C; rather he has come to appreciate that this is unlikely to support his claims for protection and that he may have additional claims arising from aspects of his post-school life and political views that he previously did not appreciate.

   Country information

5. The Tribunal has relied upon the latest DFAT Country Information Report for Vietnam (published in 2022)(2022 DFAT Report) for the following information about Vietnam.  It is a one-party state and opposition parties are effectively illegal.[1]  Some advocacy and activism for democracy and individual freedoms takes place, but it is not common as it is considered sensitive by the Government and activists propounding these principles face arrest.[2]  As activism has moved to online platforms the Government has increased laws attempting to control online platforms.[3]

   [1] 2022 DFAT Report [3.49]

   [2] 2022 DFAT Report [3.50]

   [3] 2022 DFAT Report [3.51]

6. With respect to the availability of police protection, the 2022 DFAT Report suggests that, although police are generally well-trained and well-educated, they often rely on catching criminals in the act of committing a crime and give little time and attention to investigation or the gathering of circumstantial evidence.[4] The 2022 DFAT Report reports cases of organised crime groups bribing police to not respond in specific situations, and instance in which police have not responded when citizens have called for help. 

   [4] 2022 DFAT Report [5.2]-[5.3]

7. The Tribunal put this information to the applicant during the hearing and he said that he had knowledge of brutal assaults committed on people in his village (and his friend C) at the hands of the police, and no-one dared to do anything.  He said that the Vietnamese government was influencing the information that DFAT was producing, and that it was necessary to live there as a citizen to understand what happens.

   Credibility

8. The applicant did not make protection claims at the earliest opportunity; his initial reason for travelling to Australia was economic.  The Tribunal is not satisfied on the applicant’s oral evidence alone that he was afraid that, if he admitted to strong anti-government feelings, he genuinely felt that he would not be safe, even in an Australian detention centre.  However, paranoia about a Vietnamese interpreter demonstrated during his 2018 interview, to the extent that he preferred to manage in English rather than make admissions about himself in the presence of the Vietnamese interpreter, does corroborate his oral evidence.

9. The applicant gave general evidence to the Tribunal about his reasons for resenting the Vietnamese government, which included high level mission statements about believing in freedom and democracy, and an expression of concern about his family potentially having land confiscated one day. He has attended at least one human rights meeting in Australia (as accepted by the delegate in the decision under review).  Collectively, the applicant’s evidence was not sufficient to persuade the Tribunal that the applicant’s political opinion was previously expressed to be strongly anti-government.  The applicant clearly has generally anti-government views, but they have lacked specificity or direction. 

10. With regards to the applicant’s changing evidence, he has been exposed to Australian media for over a decade and has had the benefit of seeing the advantages afforded to his citizen wife and child.  The context of being an expectant father does cast a different light on the applicant’s changed evidence as presented to the Tribunal at hearing.  There is a real chance that his new emphasis on concern for his family at the hands of the government in the future is a reasonable product of his (then) approaching fatherhood.  The Tribunal makes no overall adverse finding on the applicant’s present credibility because of his changing evidence over time.

11. The Tribunal formed a favourable view of the applicant during the hearing and accepts that he is now being honest and forthright in his evidence.  The Tribunal accepts that the applicant’s remorse for his previous dishonesty is genuine, and is persuaded that the applicant is now prepared to give honest responses even when he understands that the evidence he is giving is against his own interest.

    Refugee claims

12. The test for meeting 36(2)(a) is whether the applicant has a well-founded fear of persecution in Vietnam for a refugee nexus reason, in this case the applicant’s political opinion.

    Anti-government political opinion

13. The applicant appeared to hold a strong, subjective fear of what will happen to him if he returns to Vietnam.  He also demonstrated a convincing pro-democratic stance, and a strong desire to see the protections afforded to Australian citizens adopted in Vietnam.  The applicant’s anger at the land confiscations, albeit they had not yet affected his family personally, also appeared genuine to the Tribunal.

14. The Tribunal is satisfied that the applicant has views that would be considered pro-democratic and pro-freedom should they come to the attention of the Vietnamese government.  The Tribunal finds that the applicant holds a political opinion that would expose him to a real chance of harm in Vietnam if it was agitated in a way that drew attention in Vietnam.

15. It falls to the Tribunal to make a decision about what the applicant will do with his political views if he returns to Vietnam, and to the extent that it is relevant, the reason or reasons for his decisions in this regard.  The Tribunal finds that the applicant is telling the truth about his feelings towards the Vietnamese government and further finds that there is a real chance that the applicant will participate in pro-democracy and pro-freedom rallies that will, on the country information, very likely expose him to persecution from the government, notwithstanding that his anti-government behaviour has been mild in the past.

16. The Tribunal observes that the applicant’s bearing and demeanour at the hearing was confident and self-assured.  He was casual in his criticism of the Vietnamese government and displayed off-hand contempt for Vietnamese police in his manner of speaking about them. The Tribunal considers that there is a real chance that the applicant will generally display himself to be a pro-democratic and Westernised person if he returns to Vietnam. 

17. The Tribunal finds that there is a real chance that if the applicant returns to Vietnam he will be identified as a failed asylum seeker, because the leak of his data in 2014 (which the delegate accepted had occurred) causes the applicant considerable fear; the Tribunal thinks it unlikely that he will lie to the authorities if he is asked about his departure from Vietnam because of the possibility that they will be able to verify his story.  There is a real chance that the applicant will be subjected to questioning that will result in his pro-democracy stance coming to the attention of the authorities early in his return to Vietnam. 

18. That, of itself, would not necessarily lead to serious harm to the applicant.  However, the Tribunal considers that the risk to the applicant is magnified by his relationship with Australian citizens.

    Membership of a particular social group – husband and father of Australian citizens still resident in Australia

19. It is uncontroversial, and the Tribunal finds, that the applicant is married to an Australian citizen, and that her child born in Australia to the applicant will also be an Australian citizen by descent.

20. The Tribunal notes that the applicant’s access to Australian citizen family members might put him at the same risk that confronts pro-democratic social media influencers in Vietnam, because his reported comments to his family may be quickly and effectively given a broad online audience. It is clear from the country information that the Vietnamese government exercises control over social media platforms, with a particular eye to those publishing pro-democratic views and government criticism in the West.

21. As the husband and father of Australian citizens the applicant’s views may be very readily transmitted to a broad audience through social media and online platforms that are beyond the control of the Vietnamese government, which the Tribunal finds would make the applicant an additional risk to the Vietnamese government.  The only obvious way to control the applicant’s views leaking out to the West through his family would be to cut off contact between the applicant and his Australian family, which would, in the Tribunal’s respectful view, comprise serious harm to the applicant irrespective of how it was effected. 

22. On balance, the Tribunal is satisfied that there is a real chance of serious harm to the applicant if he returns to Vietnam, for the essential and significant reasons of his political opinion and his membership of a particular social group being the husband and father of Australian citizens still resident in Australia. There is no evidence before the Tribunal to suggest that relocation would assist him or that he has access to a safe third country.

23. The Tribunal has considered whether the applicant might modify his behaviour to escape the attention of the authorities.  However, the Tribunal considers that the applicant’s illegal departure from Vietnam coupled with the separation from his family that is likely to be the result of his return to Vietnam (or his fear for his family if they accompany him) would make it difficult for him to conceal his dislike and contempt for the government of Vietnam and the local police. There is also a real chance that such dislike and contempt would be imputed from his bearing, his manner of speech, his recent history and his family in Australia.

24. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

25. The Tribunal remits the decision dated 2 July 2018 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

26. The Tribunal sets aside the decision dated 3 December 2020 and substitutes it with a decision that the application dated 5 June 2020 is invalid.

    Jessica Henderson
    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.

    …