1908548 (Refugee)

1908548 (Refugee) [2023] AATA 2761 (26 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Hunter Te (MARN: 1804811)
CASE NUMBER:  1908548
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Amanda Paxton
DATE:26 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 May 2023 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – imputed political opinion – bystander at protest event – suspected of being a member of Viet Tan – adverse police clearance – credibility concerns – not formally arrested or charged – departed Vietnam lawfully on own passport – concerns about human rights in Vietnam – no involvement in human rights activism – failed asylum seeker – bribery and corruption – compassionate circumstances – Australian citizen wife and children – best interests of the children – serious, ongoing and irreversible harm – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91K, 417
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, arrived in Australia [in] April 2013 by boat vessel.
The applicant applied for the Class XE-790 Safe Haven Enterprise Visa (SHEV) on 17 February 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
On 10 June 2017, the Department of Home Affairs (the Department) notified the applicant that his visa application for a Safe Haven Enterprise (subclass 790) visa had been refused and that the refusal decision had been referred to the Immigration Assessment Authority for review under Part 7AA of the Migration Act 1958 (the Migration Act). This was because the applicant was considered to be a “fast track applicant” under the Migration Act.
[In] December 2018, the Federal Circuit Court declared that the applicant was not correctly notified of the Department’s decision to refuse his SHEV and ordered that the decision of the IAA dated [August] 2017 be quashed.[1] On 23 March 2019, the Department re-notified the applicant of its decision to refuse the application for a SHEV giving the applicant the right to seek a review of the decision with the Administrative Appeals Tribunal under Part 7 of the Migration Act.[2]
[1] AAT 1908548, Doc Id. 5503710.
[2] Ibid.
The applicant made a valid application for review within the prescribed period.
The applicant appeared before the Tribunal on 16 February 2023 to give evidence and present arguments. The applicant’s representative also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. A copy of the delegate’s decision dated 10 June 2017 refusing the applicant’s current application for a SHEV was provided to the Tribunal by the applicant.
At hearing the applicant sought clarification in relation to this review. He explained that on 1 October 2020 he had received advice from the Department that the s 48 bar had been lifted enabling him to apply for a different type of visa. He stated that at that time he was being assisted by an agent who in error lodged a further application for a SHEV. He subsequently withdrew that application and lodged an application for a Partner visa. This application was found to be invalid because it was made outside the required seven days period.
Departmental systems indicate that the applicant lodged a second SHEV in October 2020 and that this was withdrawn in 2021 just before a Partner visa was lodged. The Tribunal clarified that this review was being conducted in respect of his SHEV application.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Vietnam and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and migration history
The applicant declared the following, in summary, in his application for a SHEV:[3]
·     He was born on [date] in [Village 1], [District 1], in the Province of Ha Tinh in Vietnam. He is a citizen of Vietnam.
·     He has never been married and has no children. His father, mother and sister live in Vietnam. His brother died.
·     The applicant departed Vietnam from Ho Chi Minh City [in] April 2013 using his Vietnamese passport and arrived in [Country 1]. From [Country 1], the applicant travelled to Australia by boat and arrived [in] April 2013.[4]
[3] See Departmental file.
[4] Ibid.
Protection Claims
In his application for a SHEV, the applicant provided written claims in a statement dated 15 February 2017, which in summary are as follows:[5]
·     The applicant is seeking protection in Australia so that he does not have to return to Vietnam.
·     The applicant left Vietnam because there are no human rights in Vietnam.
·     There is a lot of corruption in the government, such that he needs to pay every time he wants something. There is also police corruption. He was forced to pay bribes to policemen on three occasions when he was accused of speeding while driving.
·     The police force in Vietnam harassed him. [In] January 2013, there was a court case in [City 1] against [number of] Catholics which, because of his presence there in the mob outside the court, led to a prolonged and continuous encounter with the police.
·     He was taken to the police headquarters and put in a locked room. He was handcuffed to a chair and beaten and questioned by policemen. A few days after returning home he was given a schedule of appointments to attend the police headquarters three times a week.
·     The applicant could not get a job because of a poor police clearance report which stated that he was involved in anti-government activities.
·     He is not happy with the Vietnamese government.
[5] Ibid.
Evidence at hearing
The applicant confirmed he is a Vietnamese citizen and stated that he has not travelled to any other country except [Country 1]. The applicant’s parents and elder sister are in Vietnam, and he is in touch with them. In Vietnam, the applicant qualified as an [Occupation 1].
[In] November 2020, the applicant married his wife, an Australian citizen born in Australia. Together they have two children, one [age] years old and the other [age] years old. He has no other family members in Australia.
The applicant gave evidence that he departed Vietnam [in] April 2013 using a valid Vietnamese passport in his name through Tan Son Nhat International Airport in Ho Chi Minh City and arrived in [Country 1]. He stated he experienced no difficulties departing Vietnam and left Vietnam legally. In [Country 1], he made arrangements with people smugglers to come to Australia. His passport was confiscated by the people smugglers. Subsequently he applied for and obtained without difficulty a new passport at the Vietnamese Consulate in Sydney. He did this to support his application for a Partner visa.
The applicant stated that he left Vietnam because he had been arrested and tortured and he feared he was suspected as belonging to the Viet Tan group. He stated that he had no involvement in any protest activity or political group in Vietnam and has never had any involvement in the Viet Tan group. He doesn’t know why he was suspected as involved in this group but thinks it was because of his presence at a protest in January 2013 where he was caught up in a crowd gathered outside the local Courthouse where people were on trial. He said he was there by accident and when he saw the crowd, he wanted to know what it was about. He noticed police pushing people and asked a policeman why they were doing that and said to the policeman words to the effect that this was not right, that the police shouldn’t push people around like that.
He said that when he left the crowd, some police followed and arrested him. They took him to the police station where he was questioned whether he was involved in the protest and beaten. One person questioned him, and when his answer didn’t please them another person hit him. He told the truth; that he not been involved with the protest but was a bystander.
In response to Tribunal enquiry about the duration of his detention at the police station, the applicant stated that he was held and beaten from the morning until the evening and was released in the evening of the same day. He stated that he didn’t remember exactly when he was released but it was in the evening. He did not remain at the police station overnight.
The applicant said he was not provided with any documentation on arrival at, or release from the police station and he was not arrested or charged with any offence, but he believes he was suspected of an offence because he was questioned. He said that he does not have any evidence of his detention.
At hearing, the applicant stated that he did not have any further contact with police after his release from this detention, but that he had to report to them. He doesn’t have any evidence of his requirement to report to police. He doesn’t remember how often he had to report. The Tribunal made further enquiry to understand the frequency of the applicant’s reporting requirement, and he told the Tribunal he departed Vietnam nearly a year after the protest and he doesn’t remember how often he reported but he didn’t have to report all the time.
The applicant stated that his biggest problem arising from this incident was that he needed a police clearance to apply for jobs and he didn’t get one. As set out in more detail below, he stated that he was considered to not be of good character, and he thinks this is related to his detention after the protest. He did not keep a copy of the police certificate because he didn’t think it was important.
In response to enquiry whether there were any other reasons he feared returning to Vietnam now, the applicant said no. He said he did not come to Australia for work. The Tribunal observed that in his statement he had put forward concerns about human rights and asked whether this was still a concern and how this might affect him on return. He said he is still concerned about human rights in Vietnam, but it only affects him psychologically.
The Tribunal also advised that the applicant had put forward concerns about corruption as a reason he feared return to Vietnam. He stated that living with the corruption made him feel uncomfortable.
In Australia, the applicant has had no involvement in political or human rights activities.
The applicant told the Tribunal he is not sure how he would be treated on return to Vietnam because he has been away a long time, but he fears it. He fears it because life in Vietnam is unknown to him now.
The applicant also explained that his young family, his Australian citizen wife and two young children are here. He and his wife met when he moved to Sydney four years ago. The applicant does not have permission to work so his wife supports the family working long hours [while] the applicant is the full-time carer for the children and attends to all the domestic matters. His wife has family here.
The applicant stated that his children are very small, and they need the love and care of their father and mother to grow and develop. They need him to take care of them, they are used to him looking after them and he does not feel comfortable letting others look after them and nor do they feel comfortable with other people. He requested that if he is not found to be owed protection that the Tribunal recommend his case for Ministerial intervention.
Post-hearing submission
On 1 March 2023 the Tribunal received a post-hearing submission dated 28 February 2023.[6] In this submission, the applicant put forward his desire that the Tribunal refer his matter for Ministerial Intervention to enable him to remain in Australia to take care of his Australian citizen wife, and two young children who are [age] and [age] years old. He believes this is in the best interests of the children. The marriage certificate of the applicant and his wife’s marriage was attached confirming the date of their marriage as [date] November 2020.[7] Also attached are the children’s birth certificates confirming the applicant as their father.
[6] AAT 1908548, Doc Id. 10795786, 1 March 2023.
[7] AAT 1908548, Doc Id. 10795786, 1 March 2023.
This submission also explains the applicant’s experience applying for a Partner visa. He stated that he had the opportunity to apply for a Partner visa, but his former migration agent made mistakes in the application process. According to the applicant, despite the Minister lifting the s 91K bar which allowed the applicant to apply for another visa onshore, the agent advised the applicant to apply for a SHEV first, then apply for the Partner visa later. Two months after lodging the SHEV, the former migration agent lodged the Partner visa. However, lodgement was after the seven-day timeframe given by the Minister, making the Partner visa application invalid. According to the submission, the migration agent also withdrew the SHEV application, resulting in the expiration of the applicant’s bridging visa E, and leaving his stay in Australia unlawful. The Departmental correspondence in relation to the SHEV and the Partner visa is attached.[8]
[8] AAT 1908548, Doc Id. 10795786, 1 March 2023.
It is submitted that the applicant was seeking advice to apply for a Partner visa, which would have been granted had he received the correct advice, but that due to the incorrect advice provided by his former migration agent, he lost his chance to apply for the Partner visa. It is conceded that the applicant is ultimately responsible for choosing a migration agent to act for him, but states that he was not fully aware of the migration agent's lack of experience and knowledge.
It is respectfully requested that the Tribunal refer the applicant’s case for Ministerial intervention, allowing him to apply for a Partner visa onshore.
FINDINGS AND REASONS
Identity and country of reference
In his review application form to the Tribunal the applicant stated that he was a national of Vietnam.[9] The applicant provided the Department with original copies of his Vietnamese Birth certificate, National Identity Card and Driver’s licence including the English translation of all the documents.[10]
[9] AAT 1908548, Doc Id. 5503731.
[10] [Department file number] Department decision record.
The documents provided by the applicant are consistent with his evidence to the Department and the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds he is a citizen of Vietnam and as such his protection claims will be assessed against Vietnam as the country of reference and ‘receiving country’ respectively.
Credibility
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm, does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible for or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[11] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[12]
[11] Section 5AAA of the Act.
[12] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v
MIEA (1985) 6 FCR 155 at 169–70.

A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[13] Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton
[14] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
Relevant country information
The Tribunal has had regard to the DFAT Country Information Report for Vietnam, dated 11 January 2022 (the DFAT Report) put to the applicant in summary at hearing.[15]
[15] DFAT Country Information Report Vietnam, 11 January 2022.
Corruption
2.10 Vietnam ranked 104 out of 180 countries in Transparency International’s 2020 Corruption Perceptions Index. A large anti-corruption campaign in 2017 and 2018 saw thousands of investigations and prosecutions that included senior government officials and senior business leaders.
2.11 Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services. See Police or Judiciary or Prevalence of Fraud (in documents) for further specific information.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted. See also Online activists and Land and environmental disputes.
Police
5.1 There are two main security forces under the Ministry of Public Security (MPS). The People’s Security Force primarily collects intelligence to detect activities that damage national security; while the People’s Police Force is responsible for social order and public safety, and manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control, household registration and identification cards.
5.2 Police operate at national, provincial, district, and commune levels. The distinction between different police units may not be obvious to people who deal with police, except for traffic police who wear a different coloured uniform. Commune police often have lower salaries and fewer benefits than police at the district, provincial, and national levels. Police are generally well-trained and many receive degrees in policing or higher-level vocational education.
5.3 In-country sources told DFAT police tend to react to crime rather than proactively investigating crime. That is, police often rely on catching people in the act of committing crime rather than investigating or using circumstantial evidence. This is not always the case, however, and in-country sources told DFAT that sometimes police take very strong and effective action to investigate crime, but this is not a consistent experience. Political crimes may receive more police attention than non-political crimes.
5.4 A 2019 Transparency International survey on corruption found that more than 61 per cent of Vietnamese people had paid a bribe to police in the last 12 months. Sources have reported cases of organised crime groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help. Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.
5.5 A distinction should be made between high- and low-level corruption. Police corruption may take the form of ‘coffee money’, a small payment at the side of the road, which may in turn be paid to superiors or other parts of Government as part of a patronage network. This may be seen by people as the ‘way things are’ and not necessarily recognised as corruption. High-level corruption, including payments by organised crime or in politics, is much less tolerated. In-country sources told DFAT such matters are likely to be investigated and severely punished.
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.
Findings and reasons
The Tribunal acknowledges that about 10 years have passed since the events on which the applicant bases his claim to fear serious or significant harm in Vietnam, however as discussed with the applicant at hearing, aspects of his evidence are of a level of significance that the Tribunal would expect him to recall them clearly. The Tribunal also noted inconsistencies about events that it considers cannot be explained by memory lapse. As discussed below, these matters lead the Tribunal to hold doubts about the credibility of key claims.
Imputed political opinion arising from presence as an observer at a protest in 2013
The Tribunal has considered the applicant’s written statement and evidence at interview with the Departmental delegate as set out in the delegate’s decision record provided to the Tribunal by the applicant, that he was caught up in a protest crowd outside a courthouse where [number of] Catholics were being tried for offences in January 2013. The applicant’s evidence in this respect has been consistent and detailed throughout his visa process. On this basis the Tribunal accepts the applicant was present as a curious bystander at this event.
The Tribunal has assessed the credibility of the applicant’s claims that he subsequently attracted the adverse attention of the authorities as a result of comments made to police. In this assessment the Tribunal takes into account that at hearing, the applicant stated that he remained in Vietnam for about a year after this incident. This evidence does not align with his written statement or as provided to the Departmental delegate at interview set out in the delegate’s decision record provided to the Tribunal by the applicant, where he stated that the protest event occurred in January 2013, and he departed Vietnam in April 2013 only a few months after the protest. The Tribunal considers this is a significant discrepancy in the applicant’s evidence and leads the Tribunal to hold concerns about the credibility of the applicant’s evidence.
In the applicant’s interview with the Departmental delegate as discussed in the delegate’s decision record provided to the Tribunal by the applicant, he claimed he was held in detention at the police station, questioned and beaten, until the next morning when he was released. At hearing the applicant stated over a number of questions that he was released on the same day, although he could not recall when, and that he was not held overnight. The Tribunal would expect the applicant would recall some details of his release. The Tribunal would also expect that his evidence over time as to whether he was held overnight or not would be consistent. The Tribunal considers this inconsistency in evidence is significant and the differences in account lead the Tribunal to hold serious doubts about the credibility of the applicant’s evidence.
In assessing the credibility of the applicant’s evidence, the Tribunal has considered the applicant’s evidence concerning his dealings with police. The Tribunal notes that in his statement the applicant wrote that a few days after returning home he was given a schedule of appointments to attend the police headquarters three times a week. According to the delegate’s decision record provided to the Tribunal by the applicant, he told the Departmental delegate at interview that two to three days later the district police came to his home and told him he had an appointment at the police headquarters, and that he attended and was questioned about the incident with the protesters. He said that a few days later he was told to report to the police headquarters again and was questioned and given a schedule of appointments to report to the police three times a week.
At hearing, the Tribunal made a number of enquiries about the nature of contact with the police after the first incident. He told the Tribunal that he had no further contact with police after the first incident other than to report. He stated that he doesn’t remember how often he had to report but said he didn’t have to report all the time. The Tribunal acknowledges that the events as claimed occurred more than 10 years ago and memory may lapse in this time. However, in the view of the Tribunal, given the significance that attending the police station and being questioned a further two times before being provided with the reporting schedule would represent to the applicant, and the clarity of his earlier claim in respect of his reporting schedule, the Tribunal would expect that he would clearly recall the follow up questioning and how often, and for how long he had to report. The vague and limited nature of the applicant’s evidence in this respect caused the Tribunal to have further concerns about the credibility of the applicant’s claims to have come to the adverse attention of police after the being inadvertently swept up in a protest outside a courthouse.
The Tribunal has considered the applicant’s claim that he may have been detained, questioned and beaten and released on reporting requirements, because he was suspected of being a member of the anti-government organisation, Viet Tan, because he was present at the protest. In this consideration, the Tribunal takes into account the applicant’s evidence at hearing that he was not formally arrested, charged or convicted of any offence, and that he received no documentation relating to his detention, except for a schedule of reporting requirements which he no longer has. The Tribunal has also considered the applicant’s evidence that he has never had any political involvement. As discussed with the applicant at hearing, Viet Tan is an illegal organisation in Vietnam and has been declared a terrorist organisation. Having regard to the DFAT information set out above, discussed with the applicant at hearing, the Tribunal considers that had there been any suspicion of the applicant as a member of Viet Tan, he would have been detained and charged. In this respect, the Tribunal also takes into account that the applicant departed Vietnam lawfully in April 2013 using his own genuine passport without hindrance from Ho Chi Minh City. The Tribunal has had regard to information contained in the DFAT Report set out above and discussed with the applicant, and considers the information indicates that a person suspected as a member of Viet Tan would be prevented from leaving Vietnam. In these circumstances, the Tribunal does not accept as plausible that the applicant was suspected as a member of Viet Tan as a result of his presence at a protest. The Tribunal further considers that his lawful departure indicates that he was not facing charge or arrest, or that he was of adverse interest to the authorities for any reason.

The Tribunal has considered the applicant’s written claim that after the protest incident he received an unfavourable police clearance which stated that he was involved in anti-government activities, making it difficult for him to get a job. In response to enquiry about the police clearance at hearing, the applicant stated that he needed a police clearance but didn’t get one. When the Tribunal sought clarification, the applicant said that initially, he did not try to apply for a clearance because they said he was not good enough. When asked to provide more detail, he stated that he later applied for and obtained a certificate, but this said he was not of good character. He does not know why he was considered not of good character, but he thinks it related to his detention after the protest. This meant he could not get a job. He said that he did not speak to anyone or make any enquiry about this assessment or seek a review, and that he did not keep a copy of the police certificate.
The Tribunal considers the applicant’s evidence concerning the police clearance to be confused. At hearing, he did not mention that the report stated that he was involved in anti-government activities as he did in his written claims as the Tribunal would have expected but indicated that he did not know why he was not provided with a clear report. Further, given that according to the applicant this document was essential for obtaining a job, the Tribunal would have expected he would have kept a copy of the report given its importance, and that he would have sought the reasons for its contents, especially given he had no political involvement and no charges or convictions against him. In the view of the Tribunal, these aspects of the applicant’s evidence raise concerns about the credibility of his claims.
As discussed at hearing, the Tribunal considers the concerns set out above raise significant concerns about the credibility of the applicant’s claims to have come to the interest of the authorities for any reason. For this reason, the Tribunal does not accept the applicant came to the attention of police at the protest and was detained, held, questioned and beaten at the police station, or subsequently required to report regularly to police for any reason. The Tribunal is not satisfied that the police certificate he later obtained for employment purposes contained comments that he engaged in anti-government activities, or that he was issued an adverse police clearance for any reason, or that the clearance prevented him from obtaining employment. The Tribunal is not satisfied the applicant had any adverse political, religious or terrorist/security profile when he left Vietnam in April 2013, or that he would have any adverse profile for activities before his departure on return to Vietnam.
On the straightforward evidence of the applicant, the Tribunal is satisfied the applicant has not had any political involvement in Vietnam, nor has he taken part in any political activity in Australia. On this basis, the Tribunal is satisfied the applicant would not involve himself with any political or terrorist group (including Viet Tan) on return to Vietnam.
After considering the applicant's claims to fear harm due to his imputed political opinion arising from his presence as a bystander at a protest in April 2013, the Tribunal is satisfied that there is not a real chance the applicant will face serious harm involving persecution from the Vietnamese authorities or any other agent on return to Vietnam. The Tribunal is also satisfied that there is not a real risk the applicant will be subject to significant harm on return to Vietnam for this reason.
Human rights
The applicant has stated that he is not happy with the Vietnamese government and at hearing he indicated that he is still concerned about human rights in Vietnam, but that this only affects him psychologically.
Having regard to the independent country information set out above, the Tribunal accepts that human rights activism, such as democracy and individual freedoms may be sensitive to the government and activists in different contexts may be arrested. Laws effectively outlaw protests that the government finds sensitive, such as human rights and freedom of expression, and protests may be subject to close police monitoring.[16] However, the Tribunal accepts the consistent evidence of the applicant that he has not been involved in human rights activism in Vietnam or in Australia in the past, and on this basis the Tribunal assesses that he will not involve himself in human rights activism in the future. The Tribunal has also found above that the applicant has no adverse profile as a person engaged in protest activity. As discussed below, the applicant has stated that there is corruption in Vietnam. However, the evidence of the applicant indicates that he has not made any public comment about corruption. On this basis, the Tribunal is satisfied the applicant has no profile as a person who is not happy with the Vietnamese government or as a person who is concerned about human rights in Vietnam such that he will be of adverse interest to the authorities on his return to Vietnam.
[16] DFAT Country Information Report Vietnam, 11 January 2022, [3.54 - 3.57].
While the Tribunal accepts the applicant may feel some psychological discomfort arising from his concern about human rights, the Tribunal does not consider this amounts to serious harm for the purposes of s 5J(4)(b) of the Act or significant harm as defined at s 36(2A) of the Act.
For these reasons, the Tribunal is satisfied there is not a real chance the applicant will face serious harm from the Vietnamese authorities arising from his political opinion as someone concerned about human rights or for any other reason, now or in the foreseeable future. The Tribunal is also satisfied that there is not a real risk that he will suffer significant harm in Vietnam for these reasons.
Treatment on return to Vietnam as an asylum seeker
The applicant made no claims to fear return to Vietnam as a returned asylum seeker. However, the Tribunal has considered the applicant’s circumstances as a person who departed Vietnam lawfully but arrived in Australia by boat and has had regard to information contained in the DFAT Report above concerning returning asylum seekers. This information indicates that as a person who left Vietnam lawfully, he will not be of adverse interest to the authorities on return to Vietnam for illegal departure, but that he may be briefly questioned to obtain information about facilitation of any illegal movement on his part.[17] On this basis, the Tribunal accepts that the applicant may be questioned on arrival in Vietnam about his route to Australia. However, the Tribunal is satisfied that this questioning will be brief and that he will not be held overnight or harmed in this process. The Tribunal is satisfied that this questioning will not amount to serious harm or significant harm.
[17] DFAT Country Information Report Vietnam, 11 January 2022, [5.29 – 5.31].
As indicated in the delegate’s decision record provided to the Tribunal by the applicant, the applicant was affected by the departmental data breach that occurred in 2014. The applicant has not claimed to have any concerns about a heightened profile as a result of this temporary release of his personal details. However, the Tribunal has nevertheless considered the applicant’s circumstances as a person who may be known to have applied for asylum and has had regard to relevant country information contained in the DFAT Report above. The Tribunal notes that being a failed asylum seeker is not generally stigmatised in Vietnam and that migration is common and has been an accepted feature of Vietnamese lives for many years.
Taking into account the applicant’s circumstances and the country information before it, the Tribunal is satisfied there is not a real chance the applicant faces serious harm from the Vietnamese authorities or anyone else arising from an imputed political opinion as a returned asylum seeker, now or in the foreseeable future. The Tribunal is also satisfied that there is not a real risk that he will suffer significant harm in Vietnam.
Bribery and corruption
The Tribunal has considered the applicant’s written claims that he fears return to Vietnam because he is affected by corruption; corruption in the government such that he has to pay every time he wants something; and police corruption resulting in him having had to pay bribes to policemen on three occasions when he was accused of speeding while driving. When prompted to speak about these claims at hearing, the applicant stated that living with the corruption made him feel uncomfortable.
Having regard to DFAT country information set out above, indicating that despite government efforts to curb corruption, corruption remains at high levels in Vietnam and affects everyday Vietnamese people, the Tribunal accepts that the applicant has paid “low level” bribes to officials and police.[18] The Tribunal accepts that this aspect of Vietnamese life may make the applicant feel uncomfortable, but on the evidence before it, the Tribunal is satisfied that the requirement that he pay bribes has not been for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), nor does this conduct involve serious harm to the applicant and systematic and discriminatory conduct: ss 5J(4)(b). Looking to the future, the Tribunal is satisfied the applicant does not have a real chance of persecution involving serious harm for reason of corruption. The Tribunal is also satisfied that the harm involved in paying bribes to police and officials at the level described is not ‘significant harm’ for these purposes as exhaustively defined in s 36(2A): s 5(1). The Tribunal finds there is not a real risk the applicant will suffer significant harm on this basis.
Adjustment to Vietnam after a long absence
[18] DFAT Country Information Report Vietnam, 11 January 2022, [2.10 – 2.11].
In considering the applicant’s fear of return to Vietnam because it is unknown to him after his long absence, the Tribunal acknowledges that the applicant has now lived in Australia for over 10 years and accepts that after this period he would face some challenges readjusting to and rebuilding his life in Vietnam. However, having regard to the applicant’s evidence that he is in contact with his family in Vietnam, the Tribunal considers that he will have the emotional and social support of his family on return. The Tribunal also considers that he has demonstrated considerable resilience and initiative in establishing a satisfying life in Australia, and the Tribunal is satisfied that these qualities will assist him to re-establish himself in Vietnam.
In considering the applicant’s prospects in Vietnam, the Tribunal has had regard to information above contained in the DFAT Report which indicates that returnees may face a range of difficulties including employment difficulties upon return.[19] The Tribunal notes that the applicant is qualified as an [Occupation 1] and considers this qualification will assist him in finding employment in Vietnam. As set out above, the Tribunal does not accept the applicant’s claim to have been given an unfavourable police clearance and the Tribunal is satisfied the applicant would not be prevented from obtaining employment for this reason. The Tribunal is also satisfied that his family will provide the applicant with practical and economic support and assistance to access services if needed on his return.
[19] DFAT Country Information Report Vietnam, 11 January 2022, [5.32 – 5.34].
For these reasons, the Tribunal is satisfied there is not a real chance the applicant will face serious harm involving persecution from the Vietnamese authorities or any other agent as a returnee to Vietnam. The Tribunal is also satisfied that there is not a real risk the applicant will be subject to significant harm from the government or community or any agent as a returnee to Vietnam after a long absence.
After considering all of the applicant's claims, both individually and cumulatively, the Tribunal is satisfied that there is not a real chance that he will face serious harm for any of the reasons set out in s 5J(1), now or in the reasonably foreseeable future in Vietnam. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Vietnam. Further, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
Ministerial Intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has taken note of the Minister’s guidelines on Ministerial powers in determining whether to make a recommendation. The guidelines include the following criteria as to the use of intervention powers:
· where there are compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
· where there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
On the basis of the documentary evidence provided (as set out above), the Tribunal accepts that the applicant has been married to his Australian citizen wife for three years and has two young children from this relationship. The Tribunal considered the applicant’s evidence in respect of his family life to be open, specific and detailed, and entirely credible. On this basis, the Tribunal is satisfied that the applicant is in a genuine relationship with his wife, and that, as he does not have permission to work, he has been the full-time, sole carer for his Australian citizen children, now [age] and [age] years old, and that he maintains the home.
The Tribunal considers that the applicant’s wife would suffer significant emotional and practical consequences if the applicant is required to return to Vietnam. Of even greater significance in this recommendation is the best interests of the applicant’s Australian children, who rely on the applicant for day-to-day care, love and support. The Tribunal considers that the children stand to experience severe adverse emotional and developmental consequences if the applicant is required to depart Australia.
Of lesser weight, the Tribunal also notes the complex circumstances leading to the failure of the applicant to make a valid Partner visa application.
The Tribunal considers that this is a matter in which there are compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm, and continuing hardship to the applicant’s wife and children.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
CONCLUSION
For the reasons given above, the Tribunal is 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 is 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
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.
…

(1996) 40 ALD 445 at 482 per Foster J.

[2023] AATA 2761

26 May 2023

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