1925187 (Refugee)

[2024] AATA 4326

1925187 (Refugee) [2024] AATA 4326 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925187

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:19 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 August 2024 at 1:23pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – environmental protest – physical assault – fear of detention – employment – return visit to Vietnam – evasion of military service – exit procedures – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 423, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 26 August 2019.

2. The applicant, who claims to be a citizen of Vietnam, applied for a Protection visa.[2] His application was refused on the basis that he was not a refugee as defined by the Act,[3] and therefore he was not a person in respect of whom Australia had protection obligations.[4] In arriving at that decision, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there was a real risk he would suffer significant harm.

   [2]The applicant’s application was received by the Department on 20 November 2018.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] At a subsequent time, the Tribunal wrote to him advising that it had considered all the material before it relating to the review application but it was unable to make a favourable decision on that information alone. He was invited to give oral evidence and present arguments at a hearing scheduled on 25 July 2024.

   [5]The applicant’s review application was filed with the Tribunal on 9 September 2019.

4. The applicant was not represented throughout the review process and his was assisted during the hearing by an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

   [13]Migration Act 1958 (Cth), s 36(2)(a).

   [14]Migration Act 1958 (Cth), s 36(2)(aa).

   [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise if the Minister is satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

12. The applicant claims to be a citizen of Vietnam and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and, based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No.84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    [20]Migration Act 1958 (Cth), s 499.

    MATTERS LEADING UP TO THE REVIEW HEARING

15. The applicant’s migration history held by the4 Department showed that he was granted a Visitor visa (subclass 600) [ib] November 2018 and he arrived in Australia four days later on [a date in] November 2018. His application for a Protection visa was lodged with the Department on 20 November 2018, which was [number] days after he arrived. For completeness, the claims he expressed within his application are:

76	Why did you leave that country/those countries?
Growing up seeing the dictatorship country mistreated our family, life has been so hard for us. I am not a member of communist party so I received unfair treatment to any social interactions, including jobs, opportunities and social justice. They have no human rights so I decided to leave.
77	What do you think will happen to you if you return to that country/countries?
If I return to Vietnam I will receive mistreatment, harassment, torture, threats and imprisonment. I am afraid that may happen.
78	Did you experience harm in that country/those countries? [applicant ticked Yes]
I am conscious of the fact that social justice is a freedom that people is entitled to. I participated in a protest against a company FORMOSA who had illegally dumped poison waste into waterways, and as result I was threatened, harassed for my participation.
79	Did you seek help within the country/those countries after the harm? [applicant ticked neither Yes or No]
Yes. I tried to seek help but was unsuccessful.
80	Did you move, or try to move, to another part of the country/those countries to seek safety? [applicant ticked No]
I tried to move south of country but fearing my parents will be harassed, mistreated, therefore I decided to stay put.
81	Do you think you will be harmed or mistreated if you return to that country/those countries? [applicant ticked Yes]
I will be in all sorts of trouble: labour camp, torture, or imprison me.

82

Do you think the authorities of that country/those countries can and will protect you if you go back? [applicant ticked No]

The country has committed many human rights violations against its citizens. Only human rights watch can help, but there’s none in Vietnam.

83

Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed? [applicant ticked No]

– no support

– Family will be harmed

1. After receiving his application, the Department wrote to him on 5 December 2018 and invited him to attend an appointment with the Department on 14 December 2018 so that he could provide his identifying particulars. It was also explained to him that:

   As outlined in your Protection visa application form, all claims, supporting documentation and evidence should have been provided when you lodged your application. You may bring any additional information you would like considered to your appointment for the collection of personal identifiers or provide through ImmiAccount or by mail.

2. Although the applicant attended that appointment with the Department, he never provided the Department with any evidence, material or documents to support the claims he made in his application.

3. Subsequently, an assessment was undertaken of his protection claims and the delegate made a decision on 26 August 2019 to refuse his application. On that same day, he was notified of the decision to refuse his application and a copy of the delegate’s Decision Record was provided to him. Two weeks later, on 9 September 2019, he lodged his review application with the Tribunal along with a copy of the delegate’s Decision Record.

4. On 10 September 2019, the Tribunal wrote to the applicant (by email) and acknowledged receiving his review application. Within that same letter, he was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. It was also requested that if he changed his contact details (such as his residential address, mailing address, telephone number, fax number or email address), or there was a change in his personal circumstances change and this is relevant to the review of the delegate’s decision, then he should immediately tell the Tribunal. He did not respond to the Tribunal and nor did he provide any information, material or evidence to support the claims that he made in his application; and as it is explained later in these Reasons, nor did he immediately tell the Tribunal of a change in his personal circumstances.

5. On 6 June 2024, the Tribunal dispatched to the applicant (by email) a letter inviting him to attend the hearing scheduled for 25 July 2024. Within that invitation was a further reminder to him of an opportunity for him to provide evidence to support his case and he was provided with a ‘Response to hearing invitation’ template and asked to complete the template and return it to the Tribunal within seven days. He never returned the template.

6. Leading up to the re-scheduled hearing, on 18 July 2024 the Tribunal sent an SMS reminder to the applicant’s mobile telephone about the hearing.[21] That SMS reminder outlined:

   Reminder - Your AAT hearing is on 25/07/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

   [21]SMS hearing reminder was sent to the applicant’s nominated mobile number at 11:44am.

7. It was not until after the reminder SMS was sent to the applicant that he telephoned the Tribunal on 22 July 2024 to advise that he had relocated to Melbourne and could not personally attend the scheduled hearing because he now has a ‘new baby’. He requested that he be able to attend the hearing by a video link.

8. The Tribunal asked him to complete a Form MR6 and return it to the Tribunal so that his personal particulars could be updated, and he was also asked to send an email to make a formal request to the Tribunal about appearing at the hearing remotely. When asked if he had received the hearing invitation sent to him, he said that he no longer used his old email address that was recorded with the Tribunal and he only found out about hearing from people who had helped him make his application.    

   Applicant’s trip to Vietnam 

9. During an exchange of emails between the Tribunal and the applicant on 22 July 2024, he was asked to provide copies of the pages of his passport. When he provided those pages, it could be seen that on [a day in]  July 2024 he flew back to Vietnam on a Vietnam Airlines flight which landed in Hanoi. He stayed until [a later day in] July 2024 on a Vietnam Airlines flight out of Ho Chi Minh International Airport. That information is confirmed within his migration records held by the Department. Notwithstanding that he was aware that the hearing for his review application was only a few days away when he provided that pages of his passport he gave no explanation about his trip to Vietnam. Apart from the disclosure of the stamped page of his passport, he did not in any other way identify to the Tribunal that he had made that trip, or the reasons for making it.

10. In regards to his trip to Vietnam, the Department’s file reveals that on 4 July 2024, he lodged an application for a Bridging visa B and sought permission to travel to Vietnam. He provided an itinerary showing that his flights via Vietnam Airlines was booked for him to travel to Ho Chi Minh City in Vietnam on [date], with a return trip book from Ho Chi Minh to Melbourne on [a later day in] July 2024. The applicant advised the Department that the purpose of his trip to Vietnam was to visit his father who was in hospital. 

11. The Department’s information shows that his Bridging visa was not granted until 11 July 2024, and his departure to Vietnam did not take place until the following day. It is also noted by the Tribunal that when he applied for the Bridging visa he provided a declaration to the Department that he was aware that because he had lodged his Bridging visa and he chose to depart Australia, he declares that he intended to travel to Vietnam, the country which he has sought protection from, and that the Tribunal may take this into account when assessing his application for a Protection visa.

12. It is further noted that within the Department’s file that when the applicant was in Vietnam he lodged an offshore application for a Partner visa (subclass 309). That application was lodged on [a day in] July 2024, which was the day after he arrived in Vietnam.

13. In regard to the considerable explanation and information which has already been provided as a background to the applicant’s application and circumstances in these Reasons as to the events leading up to the scheduled hearing, the purpose of the explanation is to give a background of the proceedings and the Tribunal’s decision in this matter is not influenced by those events.

    THE REVIEW HEARING

14. The applicant told the Tribunal that both his parents live in Vietnam, as does his [number] siblings. He has some uncles and aunties that live in Australia. In regards to his education, he completed his high school studies in Vietnam and then attended university studying [subject 1] for two years before dropping out of his studies. He went on to say he was employed for nearly two years in a casual position in a [business 1]. He finished working [there] about 18 months before he came to Australia.

15. Since he has been in Australia he has found employment, and at present, he works as [an occupation 1] in Melbourne. In January 2019 he met his wife, and they were married in January 2024. They now have a young child who was born in [year]. His wife is originally from Vietnam but she is now an Australian citizen. He has known his wife since January 2019 and they have been in a relationship since then and they married in January 2024. He knows that she achieved Australian citizenship in the past year.

16. In regard to his own Protection visa application, he confirmed that after being granted a Tourist visa, he lawfully departed Ho Chi Minh City [in] November 2018 and travelled to Australia. The purpose for him coming to Australia was to accompany his [grandmother] because she was visiting relatives in Australia. His grandmother returned to Vietnam about three months later.    

17. In regard to his application for a Protection visa, he said that he was living in Melbourne at the time his application was made. He confirmed that he had never visited Queensland before his application was lodged and he was not living at [Town 1 adress], Queensland as shown in his application. When asked whether he made his application himself, he said that someone else made the application on his behalf. He referred to this person as his ‘friend’ and he paid his ‘friend’ a few hundred dollars to cover the lodgement fees.

18. When asked if he had ever at any stage during the time that he had been in Australia left Melbourne and travelled to [Town 1], he disclosed that he has been to [Town 1] once, which was about a week after his Protection visa application was lodged. He stayed in [Town 1] for two months before returning to Melbourne where he has remained living ever since.

1. In regard to the delegate’s decision being made on 26 August 2019, the applicant said that he was still living in Melbourne and when he received the decision in an email sent to him from his ‘friend’ who had helped him lodge his Protection visa application. A few weeks later, he got his ‘friend’ to help him lodged his review application. He said that at the time of his review application being lodged, he was living in Melbourne and not at the [Town 1] address which was provided within that application. He went on to claim that the email address provided in both his Protection visa application and his review application was not his email, but was an email which belonged to his ‘friend’ who lodged the applications for him.

2. It was identified to him that neither Protection visa application nor the review application indicated that he had anyone else assisting him and both applications suggested that that all correspondence was sent directly to him. He told the Tribunal was that all correspondence from the Department and the Tribunal were sent to his friend’s email address and his friend then redirected the emails to him. When asked about the mobile phone number listed within his Protection visa application and the mobile number provided within his review application, he said that those were not his phone numbers, he did not know who owns those phone numbers.

3. Turning to the protection claims he made in his application, when he was asked by the Tribunal why he could return to Vietnam, he said that the Vietnamese government regime is dictatorial regime and is not fair to its citizens. He spoke about an incident in either 2016 or 2017 where there had been a chemical spill caused by a company called Formosa. He went on to also say that there is no fairness in employment or generally in society and he gave an example or , if someone who had contact with someone in authority or members of the communist party are able to get employment, those that do not have those connections do not get employment as so forth.

4. Although he had returned to Vietnam only a matter of a few weeks prior to the review hearing when he was asked why he could not return to Vietnam he did not disclose this to the Tribunal. Instead, he remained mute about that trip and continued to propagate a hypothesis that he had a well-founded fear of returning to Vietnam. The Tribunal is satisfied that at this point of the hearing his failure to disclose his trip at that time raises an issue which goes directly to his credibility, and the credibility of his application.     

5. Returning to the chemical spill by Formosa, he said that this incident prevents him from returning to Vietnam. He told the Tribunal that there had been protests and the police scuffled with protesters. When asked how he was involved in all of that, he said that after the chemical spill an online group called for people to assist in the protest. He confirmed with the Tribunal that although he joined the protest, he was not involved in organising the protest and he was only at the protest as a participant. He claimed that during the protest he clashed with the police and he was subjected to pepper spray and he was struck with a baton by the police. He also claimed that other protesters were assaulted by the police.

6. He went on to say that because he had been assaulted by the police, he received injuries and had to go to a hospital to get treatment for those injuries. Although there was a reference within the protection claims in his application about him attending the protest, there was absolutely no reference to him clashing with the police, or being pepper sprayed, or being struct with a baton, or him being injured by the police, or him requiring treatment at a hospital for those injuries. The only other reference in his claims relating to the protest was him being threatened and harassed after the protest.

7. When asked to describe location where the protest took place, he told the Tribunal that he only attended one protest and he was not sure of its actual location as it was so long ago, but it was around the town of [Town 2]. When asked how many people attended the protest, he said that there had been between 90 and 120 people.

8. He went on to tell the Tribunal the local police threatened him not to go to any other protests otherwise he would be threatened and be assaulted and also that he would be in lots of trouble. There was no reference of this in his application.

9. He then claimed to the Tribunal that since coming to Australia the authorities have been looking for him to take him into military service and the authorities have twice sent letters to his parents’ house about this. He claimed that the police twice summonsed his parents to the police station about it and the authorities even went to his parents’ house looking the applicant. He told the Tribunal that this all happened in December 2023 to January 2024. He claimed that if someone does not respond to the police about the summons, the authorities classify that person as obstructing police in the line of their duty, and if that happens then the person will be incarcerated as there is no such thing as human rights.

10. He was then asked by the Tribunal what he thought would happen to him if he went back to Vietnam and the authorities, he claimed that he cannot return to Vietnam because the Vietnamese authorities would put him in prison. He also said that if he goes back, he fears being put in jail because he had avoided the compulsory military service. When asked how the authorities would know he had returned to Vietnam, he said everyone’s movements within Vietnam are controlled if you do not register where you are, you cannot get employment and as soon as the person registers their location, the authorities would know that the person was in that location.

11. He was asked again whether he still had a real fear of returning to Vietnam, he again said that his fear relates to the compulsory military service claim and him being jailed because he did not do his service. He said that he “would be charged at the highest level for non-compliance”. When asked by the Tribunal if he still possessed a well-founded fear of returning to Vietnam because of his involvement in the protest, he said “maybe a little bit but not as bad as previously”. He claimed that he was very scared of going back to Vietnam and that’s why he does not want to go back. This is a further example of the applicant giving evidence at the hearing about an alleged well-founded fear of returning to Vietnam, and his failure to disclose to the Tribunal about his recent trip back to Vietnam. This also goes towards an assessment of the credibility of the applicant.   

12. On a number of occasions since lodging his application for a Protection visa, both the Department and the Tribunal provided opportunities for the applicant to provide evidence, material all information to support the claims which he had outlined in his application. There was never an occasion when the applicant provided any of that evidence or material to the Tribunal or the Department.

13. In regard to the claims he raised during his evidence at the hearing about being pepper sprayed; being injured by the police; having his injuries treated at a hospital and him being a wanted person because he avoided compulsory military service, section 423A of the Act provides that in circumstances where the applicant raises a claim or presents evidence which was not raised before the primary decision was made, then in making a decision on the application the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the decision was made. In this case, it is not so much the applicant was presenting evidence, more so he was making claims which had not been earlier made to the Department before the primary decision was made to refuse his application.

14. The Tribunal has carefully assessed all of his oral testimony at the review hearing and weighed that against the claims that he expressed with his application and it was found that there was no reference within his original claims relating to him being physically injured, or that he had received medical treatment at a hospital because those injuries arising out of his attendance at a protest. Nor was there any reference made by the applicant to Vietnam because he had avoided the compulsory military service. He was asked why he did not provide within his application information about those claims, he said that he believed that those claims had been included in this application. The Tribunal rejects that explanation as being reasonable. He had signed his application to confirm that all the information is true and correct and up-to-date at of the time he had signed the application. Furthermore, he had been provided with a copy of the delegate’s Decision Record and could have dressed the alleged absence of those claims, but did not. Therefore, the Tribunal is satisfied (and so finds) that an unfavourable inference should be drawn as to the credibility of those new claims and they are rejected in their entirety.

15. In furtherance to the Tribunal’s assessment as to the credibility of the applicant, when he lodged his application with the Department on 20 November 2018 he signed the declaration in that application that all the information that he was providing was true and correct and up-to-date. His residential (and postal) address provided in that application was [the Town 1 address], Queensland.[22] he provided at mobile telephone number and he agreed that the Department could communicate with him by email. The email address he provided was  [Email 1],[23] which was the same email address he later provided to the Tribunal only lodged his review application on 9 September 2019.

    [22]Applicant’s application, Part C, page 15, questions 34 and 35.

    [23]Applicant’s application, Part C, page 15, question 38.

16. Upon lodging his review application, not only did he provide the same email address but he also indicated that he was still living at the same [Town 1] address he had provided in his application for a Protection visa. It is known from his evidence that the information he provided to both the Department and the Tribunal about his residential address was false because his testimony was that he was living in Melbourne at the time that both of those applications were lodged, and although he stayed in [Town 1] for two months, he was not formerly residing at that address when he made those applications.  

17. After receiving his review application, the Tribunal dispatched to his email address a letter acknowledging that his application had been received. The acknowledgement letter went on to clearly explain to him that:

    It is important that you:

    ·    tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you  have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be  decided without further notice;

    ·    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

    ·    use your case number 1925187 when you contact us.

    If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

18. Earlier in these reasons the Tribunal discussed the applicant’s evidence where he said that he had a friend lodged his application for Protection visa, and that the email address outlined in an application along with his review application belong to that friend. He also said that when he is at the Department of Tribunal sent his friend any correspondence, his friend would then pass those emails onto the applicant. If that is the case, and the Tribunal is satisfied (and so finds) that the applicant would have received the Tribunal’s acknowledgement letter and the information as it is outlined above that he should keep the Tribunal informed if any of his details change, such as his address. He never told the Tribunal that he lived in Melbourne, and he only disclosed this within a few days of the scheduled hearing being conducted.

19. He has never provided the Tribunal with any evidence that he was assisted by any other person in lodging either his Protection visa application or his review application, and given that his evidence lacked credibility and was unreliable, the Tribunal does not accept that the email which has been provided in those applications belongs to someone else other than the applicant.

20. Further to this, on 6 June 2024, the Tribunal dispatched the applicant an invitation for him to attend hearing scheduled for 25 July 2024. That invitation was emailed to the same email address which he had outlined in both the application for Protection visa and his review application. The Tribunal also provided him with a “Response to hearing invitation’ template and he was asked to return the completed template within seven days.

21. It was not until 22 July 2024, which was three days before the scheduled hearing, that he responded (by email). In doing so he said the following:

    Hi there
    My name is [name]
    I would like to need your help . my case number is 1925187
    1 . I want to please change my court in Brisbane 25/07 to Video call interview or in court Melbourne because now i live in Melbourne, also my kid are newborn, i cant come to there
    2 . I request change my details, i cant login [Email 1] anymore
    Thank for you help !
    Regards, [Name]
    Please see attachment

22. Enclosed with an email was a copy of the identification pages from his passport, along with a completed Form MR6 in which he updated the Tribunal with his current residential address in Melbourne. He also provided a new contact telephone and a new email address. In regard to the hearing response template, he returned to the Tribunal the invitation and the template, however the template was not completed.

23. When assessing the information provided in the email (as described above), the applicant said that he could no longer log into the email address of [Email 1]. His evidence at the hearing was that his friend operated that account, and that any emails his friend received from the Department of the Tribunal were then forwarded to the applicant’s email account. The Tribunal finds that when weighing this evidence against his admission in his email that he can no longer login into that account shows that that he personally had access to the account. This is another example where his evidence lacks credibility.

24. On that same day (22 July 2024), the Tribunal emailed the applicant and thanked him for providing the change of his contact details. He was asked to return the completed hearing response template, and told that details in regard to the remote videoconferencing for the hearing would be forwarded to him. He was then asked if he could provide a copy of all the pages from his passport.

25. Later that afternoon (on 22 July 2024), the applicant emailed to the Tribunal three pages of his passport. Of particular interest to the Tribunal was a page which consisted of three immigration stamps from Vietnam. One stamp was dated [in] November 2018 showing that the applicant had departed Vietnam on this date, and this coincided with his migration history held by the Department which showed that he arrived in Australia [in] November 2018.

26. A further stamp indicated that the applicant had arrived in Vietnam on [a day in] July 2024, which was less than two weeks prior to when he gave evidence at the review hearing. The third stamp shows that he departed Vietnam [later in] July 2024, and this coincided with his migration history held by the Department which shows that he arrived back in Australia on [a later day in] July 2024.

27. Although the Tribunal had heard evidence from the applicant that he had a well-founded fear of returning to Vietnam because of those claims already explored in these Reasons, it was only when the Tribunal asked him about his disclosure of the pages from your passport showing that he then disclosed to the Tribunal during the hearing that he had returned to Vietnam. He said that he recently returned to Vietnam to see his father because his father was very ill,  When asked if there could have been any other reason why he went Vietnam, he confirmed that going back to Vietnam to see his father was only for the purpose for his return to that country.

28. He was then asked how he was able to travel out of Australia and return to Vietnam. He told the Tribunal that he had lodged an application to the Department for a Bridging visa to allow him to return home to see his father. He confirmed that he lodged that application on 4 July 2024, which the Tribunal notes is a date well after the Tribunal invited him to attend the review hearing (6 June 2024). Although he emailed the Tribunal on 22 July 2024 about the hearing, he did not disclose in that email that he had just returned to Vietnam. It was only when he was asked to provide copies of his passport that any form of disclosure was made about a trip, and he certainly did not provide at that stage any explanation or evidence about the trip.

29. At this stage of the hearing, although he conceded that he had returned to Vietnam, he did not disclose that while he was in Vietnam that he had lodged an offshore application for a Partner visa. Because the Tribunal was aware of that offshore application, subject to the provisions of section 424AA of the Act, the Tribunal outlined to the applicant clear particulars of that information. The Tribunal considered that this information would be the reason, or part of the reason, for affirming the decision that was under review. As far as reasonably practical, the Tribunal made sure that the applicant understood why that information was relevant to the review, and is also made aware of the consequences of the Tribunal relying upon that information in affirming the decision under review. He was invited to comment or respond to that information, and is also provided with an opportunity to have some time to consider his response or comments to that information. He chose not to have time to consider and immediately told the Tribunal his version of why he made that application.

30. Firstly, the applicant denied that the real purpose for him returning to Vietnam was to lodge an offshore application for a Partner visa. He claimed that he took his wife and child back to Vietnam to meet his parents and he thought that while he was there in Vietnam he would take advantage of the opportunity for him to lodge his offshore. The Tribunal does not accept that his reasons for returning to Vietnam were the only reason. He told the Tribunal that prior to travelling back to Vietnam, he already knew that he could not lodge an application in Australia (onshore) for a Partner visa, any such application had to be made offshore. He claimed that knew this because when he was in Vietnam, he spoke on the telephone to relatives who were in Australia and they told him that he could not apply for a Partner visa in Australia (onshore). He also claimed that they (his relatives in Australia) said to him that while he was in Vietnam, he should take advantage of being offshore and lodge his application from over there (in Vietnam). When asked by the Tribunal when he had this conversation with his relatives in Australia, he said that he spoke with his relatives in Australia the day after he arrived in Vietnam.

31. In regard to his application for a Bridging visa which will allow him to travel to Vietnam, the Tribunal notes that the applicant signed a declaration confirming that in making his application for a Bridging visa, he was intending to travel to Vietnam being a country which he had sought protection from. He also declared that he was aware that the Tribunal may take this into account when assessing his application for a Protection visa.  

    REFUGEE FINDINGS, DISCUSSION AND CONCLUSIONS

1. A review is undertaken in an inquisitorial way and the Tribunal can seek out evidence it requires in order to reach its determination. Even though it is entitled to do so, there is no obligation for the Tribunal to seek out evidence to support the applicant’s claims.[24]

   [24]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

2. It is incumbent upon the Tribunal to conduct a review from the beginning (anew) and the Tribunal is to review and consider the material, information and evidence made available to it afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. In undertaking all of that, the Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[25]

   [25]Migration Act 1958 (Cth), s 420.

3. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. There is no responsibility placed upon the Tribunal, and nor does it have any obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27] The mere fact that he claims to have a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason or reasons claimed. Similarly, because he claims that he will 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.

   [26]Migration Act 1958 (Cth), s 5AAA.

   [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

4. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons their race, religion, nationality, membership of a particular social group or political opinion.

5. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm because he claims that he has a well-founded fear of returning to Vietnam because of his involvement in a political protest about a large chemical spill by Formosa. He also raised a late claim of having a well-founded fear of returning to Vietnam because he had avoided compulsory military service. In regard to that claim, he said that the local police had issued summonses for him and had visited his parent’s place on more than one occasion looking for the applicant.

6. Earlier in these Reasons the Tribunal was satisfied and found that an unfavourable inference should be drawn as to the credibility of the claim regarding him avoiding compulsory military service. Further to this, had there been any validity at all to this claim there was no better opportunity afforded to the applicant to provide supporting evidence so far as a copy of the summons or a statement from his parents which would have been available to him when he returned to Vietnam within a few weeks of the review hearing being conducted.

7. He has been given the opportunity by both the Department and the Tribunal to provide all details, information and evidence of his protection claims. The application form that he completed informed him that he should provide all of his claims for protection and all documentation or other evidence to support his claims. On 5 December 2018, the Department sent a letter to him and acknowledged receiving his valid application. In that letter he was advised that he could provide additional information relating his claims, and he was advised how he could provide this to the Department. When he filed his review application with the Tribunal, the Tribunal wrote to him on 10 September 2019 and advised that if he wished to provide material or written arguments for the Tribunal to consider, then he should do so as soon as possible. He has provided no material, information or evidence to either the Department or the Tribunal.

8. The applicant’s claims as outlined within his Protection visa application focus on an allegation that his life in Vietnam had been hard for him and his family because of what he described as a dictatorship in Vietnam and the mistreatment he received. He went on to identify that he was not a member of a communist party and received unfair treatment regarding job opportunities and social justice. He identified in his claims that because Vietnam has no human rights, he decided to leave Vietnam and he claims that if he returned to Vietnam, he will be mistreated, harassed, tortured, threatened and imprisoned. To validate this he said that he had participated in a protest against a company called Formosa who had illegally poisoned waste into waterways. Because he had participated in that protest, he was threatened and harassed.

9. In assessing the applicant’s claim that he had participated in a protest in regard to the Formosa chemical spill, the Tribunal is satisfied that the country information as provided by the DFAT report confirms that action was taken by the Vietnamese government against activists and those people involved in the organisation of the Formosa protest. The DFAT report explained that since late 2017, there had been a significant rise in instances in which authorities arrested and charged activists under the national security provisions with many of those arrested receiving lengthy sentences after highly publicised trials, with some of the activist connected to the Formosa protest.[28] Those people imprisoned were high profile activists, which the Tribunal finds is a description far removed from that which applies to the applicant. Although he claimed at the hearing that he was assaulted by the police at the protest, the Tribunal has discussed the rejection of that claim.

   [28]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 18.

10. Having regard to the applicant’s claim, along with country information contained within the DFAT Report about the Formosa chemical spill, the Tribunal accepts that the Formosa chemical spill did occur, and that there were protests associated with that event. In regard to a careful assessment of his claim that he participated in the protest, it is noted by the Tribunal that number of opportunities were available to him to provide supporting evidence, however he did not take advantage of those opportunities. It was only during his testimony that he provided additional confirmation of his involvement, and there is a distinct difference between what he said in his application to his oral evidence about his interaction with the authorities at that protest. The Tribunal is satisfied (and so finds) that his evidence about his claimed involvement in the protest is not reliable, it is vague and it lacks all credibility.      

11. In respect to his claim that he will be harassed and mistreated in Vietnam if he returned, the Tribunal does not accept that claim as being credible and it is rejected. The country information within the DAFT Report provides that activists, or persons of interests, are free   to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having their passport refused.[29]  In practice, the Vietnamese government imposes limits on entry and exit for political activists and government critics through its exit control list which controls the movement of people such as persons of interest, criminals and people subject to court orders across its borders, and these people may be prevented from leaving Vietnam.[30] The control of movement of people is also achieved by refusing to issue passports or laying criminal charges to prevent travel and is sometimes used against the families of persons of interest.[31] The applicant lawfully departed Vietnam and travelled to Australia on a Vietnam Airlines flight.

    [29]The DFAT Country Information Report, Vietnam, dated 11 January 2022, pages 18 – 19, paragraph 3.56.

    [30]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 32, paragraph 5.26.

    [31]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 32, paragraph 5.25.

12. Therefore,  the Tribunal does not accept that had he been a person of interest to the authorities prior to him leaving Vietnam in 2018, because he had he been so, the county information suggest that he would have been prevented from leaving Vietnam. Furthermore, in July 2024, which was within a few short weeks of the review hearing, the applicant returned voluntarily to Vietnam with his wife and young child. He was not detained upon his arrival in Vietnam, and nor was he prevented by from departing Vietnam when he returned to Australia.

13. He claimed that the purpose of that visit was to visit his father, however as it has already been discussed in these Reasons, whilst he was in Vietnam he lodged an application (offshore) for a Partner visa. Whilst his motivation to visit Vietnam was to see his ill father, the Tribunal is satisfied (and so finds) he was equally motivated to make that trip to lodge an offshore application for a Partner visa, which is an application he could not make onshore in Australia.    

14. He remained in Vietnam with his wife and young child for [number] days [between specified days in] July 2024. There is no evidence from the applicant he was detained or questioned upon his arrival in Vietnam or during the time that he was there. Nor is there any evidence provided by the applicant that he was prevented from departing Vietnam [later in] July 2024 when he returned to Australia. All of that satisfies the Tribunal to reach a finding that he was not a person of interest to the Vietnamese authorities.

15. Having carefully considered the applicant’s claim in regard to him being a person of interest because of any imputed or actual political opinion based on his claimed participation in a Formosa protest, the Tribunal is satisfied (and so finds) that the evidence in this matter does not support his hypothesis that he possesses an imputed public political profile either in Vietnam or Australia. Nor is the Tribunal satisfied that he is a person of interest to the Vietnamese authorities which would restrict his movements or relocation within Vietnam.

16. After careful consideration of all that evidence, the Tribunal is not satisfied that the claims relied upon by the applicant amount to him having a well-founded fear of persecution in Vietnam as he does not fear being persecuted for reasons of his race, his religion, his nationality, his membership of a particular social group or his political opinion as required by section 5J(1)(a) of the Act.

17. Therefore the Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

18. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[32] the Tribunal has considered the alternative criterion[33] and undertaken an assessment as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[34]

    [32]Migration Act 1958 (Cth), s 36(2)(a).

    [33]Migration Act 1958 (Cth), s 36(2)(aa).

    [34]Migration Act 1958 (Cth), s 36(2A).

19. Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of their life; the death penalty will be carried out on them; they would be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.

20. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Vietnam. The Courts have adopted the principle that test for ‘real risk’ imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[35]

    [35]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

21. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote, chance of persecution occurring.[36] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[37] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[38]

    [36]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

    [37]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

    [38]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

22. Within his application, the applicant does not claim that he experienced harm in Vietnam before he left that country and travelled to Australia, however he later changed that claim to say that because he had been pepper sprayed by the police, and had been struck with a baton and injured by the police during a protest, those injuries required medical treatment. The Tribunal is already reached a finding to reject those claims.  

23. However, notwithstanding that he thought that the Vietnamese authorities could not protect him if he returned, his own testimony is that he returned to Vietnam [a day in] July 2024 and he stayed in that country for [period]. He then lawfully departed Vietnam and travelled back to Australia. The circumstances of the trip have already been well ventilated in these Reasons. 

24. The Tribunal has also given very careful consideration to the proposition that if he returned to Vietnam, he would face a real risk of suffering significant harm as defined in section 36(2A) of the Act. There is no evidence before the Tribunal, and the Tribunal does not accept that he will be subjected to any risk of significant harm should he return to Vietnam. The Tribunal’s satisfaction on that particular issue and its findings have been supported by the applicant’s own evidence that recently he voluntarily returned to Vietnam, and during the time he was in that country he did not experience any risk of significant harm.

25. Therefore, having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Vietnam now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

26. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion if he returned to Vietnam. Therefore, the Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and he is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

27. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Vietnam he will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

28. 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 section 36(2)(a) of the Act.

29. Having concluded that he does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion of complementary protection and is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

30. There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy any of the criteria in section 36(2) of the Act.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne Pennell
    Senior 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.

    …