1925206 (Refugee)

1925206 (Refugee) [2022] AATA 3948 (28 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms ABBY HAMDAN (MARN: 0401329)
CASE NUMBER: 1925206

COUNTRY OF REFERENCE: Vietnam
MEMBER:Mark O'Loughlin
DATE:28 September 2022
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 September 2022 at 3:55pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – Khmer human rights – fear of detention – fear of torture – historical status of the Kampuchea-Krom region – political activity in Australia – advocacy for the Khmer people – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 August 2019 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, applied for the visa on 28 August 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant’s political activity has brought her to the attention of the Vietnamese authorities.
The applicant appeared before the Tribunal on 14 April and 16 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 this matter the Tribunal is satisfied that the applicant is of Vietnamese nationality.
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether, based on what is accepted of the claims made or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In considering this matter the Tribunal has relied on the following documents provided by the applicant;
a.The applicant’s Protection Visa Application (‘PVA”) dated 28 August 2018;
b.A copy of the delegate’s decision of 28 August 2019;
c.Statement of the applicant undated, provided under cover of the letter from the applicant’s representative dated 12 April 2022;
d.Statement of the applicant’s brother in law;
e.Invitation to present to the police dated [in] July 2018;
f.[Agency 1] report dated 13 April 2022; and
g.Correspondence from [Community Organisation 1] to the applicant dated 15 Nov 2014 and 20 Jan 2020;
Claims
The applicant’s claims are set out in the PVA starting at the bottom of page 18.
She says that her husband was questioned by the police in Vietnam who were trying to locate her after she moved to Australia.
She says that the police tried to summons her to the police station for questioning.
She says that [in] June 2018 she particitpated in the [Community Event 1] which took place in Victoria. She posted pictures of the memorial and says that as a result she is wanted for interrogation by the Vietnamese police.
She says that she suffered discrimination and harassment and interrogation by the Vietnamese police because of her membership of [Community Organisation 1].
She says that she cannot seek the assistance of the Vietnamese authorities for protection against that harm because it stems from the authorities themselves.
She says that she is unable to avoid the harm by relocating because the police will be able to locate her wherever she goes in Vietnam.
She says that if she is returned to Vietnam she will be tortured, harassed, interrogated and imprisoned without a fair trial. This harm will be at the hands of the Vietnamese government.
The applicant also prepared a statement, undated but apparently prepared shortly before her representative’s letter of 12 April 2022 which refers to the statement.
The statement provides background information including that her brother was killed by the Vietnamese military having refused to join them. She says that this was a major factor in her decision to join [Community Organisation 1].
She says that she went to [Country 1] with her husband in 2014 and 2018 to discuss human rights abuses in Vietnam.
She says that her husband had helped build Khmer temples in their province in Vietnam and that he feared for his life.
She says that she started joining protests in Australia within a week of arriving and had posted several times in support of Khmer’s human rights and to criticise the Communist Party of Vietnam.
She says that she found out from her husband that the Vietnamese police had visited her home in Vietnam to find out where she was. She says that they left a notice requiring her to attend the police station to discuss her involvement with [Community Organisation 1].
She says that her husband died suddenly [in] December 2012 after going to have a [drink]. She says that before he died, he expressed a suspicion that the person he had had [the drink] with was a government agent.
She says that his death certificate says he died from Covid-19 but that she believes the certificate was falsified.
She says she believes the Vietnamese police poisoned him because of his political opposition.
She fears that if she returns to Vietnam she will be questioned and tortured and possibly killed.
Applicant’s Evidence to the Tribunal
The applicant gave evidence in both hearings.
She started by adopting the written statement referred to above.
She was born in Kampuchea-Krom on [date].
Although the statement that she adopted asserts that Kampuchea-Krom is an area that was part of Cambodia that was given to Vietnam in 1949, she said that Kampuchea-Krom was still part of Cambodia when she was born in [later year].
The Tribunal notes at this point that the exact historical status of the region known as Kampuchea-Krom is a matter of some dispute. This observation is not adverse to the applicant, rather it supports her assertion that there is some political controversy about the region. It is not necessary for the applicant to be on the historically correct side of the controversy for her to be at risk of harm for the purposes of a protection visa.
The applicant gave evidence that the Vietnamese took over shortly after her brother was shot, which she witnessed. She said in her evidence that she does not know whether the people who tried to get him to join the army and fight the Khmer people were Vietnamese although she did say that they were in the Vietnamese army.
The applicant told the Tribunal that her husband was also Khmer and that they married over [number] years ago. She said that she and her husband started to agitate to press the Vietnamese government to help the Khmer people.
She said that her activism started in 2014 when she went to [Country 1] to report to them about her brother having been killed and also how her [relative], a monk, was held by Vietnamese authorities and hurt by them for trying to educate children in Khmer language and culture.
She told the Tribunal that she went to [Country 1] in 2014 and 2018 to draw her concerns about the suppression of the Khmer people to the attention of [Community Organisation 1] leader. She said she did this because [Community Organisation 1] are the only people who are likely to help the Khmer in Vietnam.
The applicant told the Tribunal that many Khmer people had been killed by the Vietnamese authorities who had administered fatal injections and blamed their deaths on Covid. She said she knows this because her family have told her.
The Tribunal asked the applicant to explain how [Community Organisation 1] could help those Khmer people who were being harmed by the Vietnamese government. The applicant was unable to provide an explanation other than to repeat that they could help them.
The applicant said that after she went to the protest in [Australia] she posted photographs on her [social media] page.
Her evidence about how she did this was confused. She ultimately said that her brother-in-law set up a [social media] page for her and other people helped her post pictures.
At about this point of the hearing, the applicant’s brother-in-law, [named] gave his evidence.
He had given a written statement which he adopted save that he corrected the date of the applicant’s trip to Australia from 2019 to 2018.
In that statement he says that in December 2021 he received a message via [social media] notifying him of the death of the applicant’s husband, due to partaking in construction of Khmer temples.
He said in the statement that he believes the applicant’s husband was killed by the Vietnamese police.
He gave evidence to the Tribunal that he helped the applicant set up a [social media] page but that he and other people help her post pictures to that page.
At that point the time allocated to the hearing had run out and it was adjourned.
When it resumed the applicant said that she came to Australia in 2018. She said that her husband had planned to come but that he was not able to leave Vietnam because of his political protests.
She said that he had been involved in political activites promoting the Khmer people at about that time including raising and otherwise displaying Cambodian flags and protesting at a Cambodian temple as a result of which the Vietnamese police reprimanded him.
She said that when they later went to [Country 1], she was able to [exit the country] but her husband had to go without letting the Vietnamese authorities know.
She said that the authorities came to their house and told them that her husband would not be allowed to go to Australia about 2 or 3 weeks before she left.
She said she does not believe the authorities knew she was also a member of [Community Organisation 1] at that time.
She gave some evidence about her husband’s death. She said that he had had 3 vaccinations and she does not believe that he died of Covid-19 as alleged.
She said that both she and her husband had often been warned by the Vietnamese authorities not to maintain Cambodian traditions in the house. She said she did not display Cambodian ornaments but her husband did which is why he was more strongly suspected than she was.
She said that since she came to Australia and started to post online about her protests, the Vietnamese authorities had started to show interest in her.
The Tribunal notes that there is evidence of an “invitation” to the applicant to attend the police in Vietnam in relation to her activities in [Community Organisation 1]. That document is dated [in] July 2018, which is after the applicant had attended the protest in [Australia].
The Tribunal further notes that there is a report from a counsellor suggesting that the applicant is suffering from a stress related condition arising from her husband’s participation in [Community Organisation 1] and the persecution he suffered because of that, and also from her own experience of the treatment of political protesters at the hands of the Vietnamese authorities.
This report suggests that the applicant does have genuinely held fears about returning to Vietnam.
CONSIDERATION AND FINDINGS
Some of the applicant’s evidence is not corroborated where the Tribunal would expect corroborative evidence to be available to the applicant. In particular, there is little evidence of the applicant’s online activity while she has been in Australia.
Further, corroborative evidence about the applicant’s husband being killed by Vietnamese authorities is scant, although it is understandable that if the applicant’s fears are correct, there would be no evidence available. The Tribunal has considered what evidence there is and is not satisfied that the applicant’s husband was killed by Vietnamese authorities.
The Tribunal is satisfied that the applicant is of Khmer descent and has occupied herself in some level of political activity including visiting [Country 1] in 2014 and 2018.
The Tribunal has regard to communications from [Community Organisation 1] that demonstrates that the applicant had communicated with them in 2014 when she went to [Country 1] and a further letter from the [named] division of [Community Organisation 1] recognising the applicant as [Official 1] of the [named branch in Australia], dated 20 January 2020.
The applicant has satisfied the Tribunal that she has been and remains active with [Community Organisation 1] and that her activities have attracted the attention of the Vietnamese police. the Tribunal is satisfied that there is a real chance that they continue to monitor her.
The Tribunal has had regard to DFAT Country Information Report Vietnam of 11 January 2022 and notes that the risk to online activists is difficult to assess but that there is a moderate risk of official discrimination[1].
[1] DFAT Country Information Report Vietnam 11 January 2022 par. 3.64
The Tribunal further observes that this is particularly in relation to matters in respect of which there are Government crackdowns. In considering the possibility of resettlement in Cambodia the Tribunal had regard to country information about that country[2]. That information suggests that the Vietnamese Government has cracked down on Khmer Kampuchea-Krom activists from time to time.
[2] UN General Assembly HRC Working Group on the Universal Periodic Review, Thirty-second session 21 Jan 1 Feb 2019, Summary of Stakeholders’ submissions on Cambodia par. 46., CCHR Report on Citizenship Rights for Khmer Krom in Cambodia, par. 1.2 and 1.3.
The same information suggests that Vietnamese nationals face substantial difficulties and prejudice in trying to relocate to Cambodia, particularly where they have a history of criticism of the Vietnamese government.
Is the applicant a “refugee”?
To satisfy the definition of “refugee” for the purposes of the refugee criterion in s36(2)(a), s5H(1) provides that an applicant who has a nationality must be unable or unwilling to return to their country of nationality owing to a “well-founded fear of persecution”.
Well-founded Fear of Persecution
The Act defines “well-founded fear of persecution” at s5J at (1) as qualified by paragraphs (2) – (6) of the section.
S5J(1)(a) provides that the applicant has a “well-founded fear of persecution” if she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“convention reasons”).
S5J(1)(b) provides that there must be a “real chance” of the persecution that the applicant fears actually occurring.
S5J(1)(c) provides that the real chance of persecution must relate to all parts of Vietnam.
Is the conduct that the applicant fears “persecution”?
To come within the definition of “a well-founded fear of persecution” under the Act, S5J(4)(b) specifies that the feared conduct must involve serious harm to the applicant.
“Serious Harm” is defined at s5(J)(5) as including a threat to the person’s life or liberty.
In this matter the Tribunal is satisfied that the applicant fears that if she returns to Vietnam, her political activism exposes her to a risk of arrest which is a threat to her liberty and, therefore, serious harm. Part (b) is satisfied.
S5J(4) (c) provides that the persecution must involve systematic and discriminatory conduct. The Tribunal is satisfied that an arrest for promotion of the interests of the Khmer people satisfies this requirement.
The Tribunal is satisfied that the applicant faces persecution.
Is the persecution that the applicant faces persecution for a “convention reason”.
The Tribunal is satisfied that the applicant’s political activity relates to her her political views about the suppression of Khmer people by the Vietnamese government.
The Tribunal is satisfied that the persecution the applicant faces is for a convention reason.
The Tribunal is satisfied that the applicant satisfies S5J(1)(a).
Is there a “real chance” of persecution if she is returned to Vietnam?
The term “real chance” is discussed by Mason CJ in Chan v MIEA [3];
“… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin. ”
[3] Chan v MIEA (1989) 169 CLR 379 at 389.

In this matter the Tribunal is satisfied that the applicant’s political activity has drawn the attention of the police and that the chance of consequent persecution is substantial rather than remote.
The Tribunal finds that the applicant satisfies S5J(1)(b).
Does the real chance of persecution relate to all areas Vietnam?
The real chance that the applicant faces is of persecution at the hands of the Vietnamese authorities.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Vietnam and S5J(1)(c) is satisfied.
Are any of the qualifications in paragraphs (2) to (6) applicable?
The Tribunal is satisfied that, because the persecution comes from the Vietnamese authorities effective protection measures are not available in Vietnam so s5J(2) does not take the applicant outside the definition of a well-founded fear of persecution.
Although the applicant could possibly avoid persecution by supressing her political beliefs, S5J(3)(c)(iii) provides that she is not obliged to do that.
The Tribunal is satisfied that the applicant’s political activism since she moved to Australia was a continuation of a course of conduct established while she lived in Vietnam and was not therefore engaged in for the purpose of strengthening her claim to be a refugee. Therefore S5J(6) does not apply.
Conclusions
The Tribunal is satisfied that the applicant has a well-founded fear of persecution for a convention reason if she is returned to her country of nationality, Vietnam.
The Tribunal is satisfied that the applicant is therefore relevantly a “refugee”.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mark O'Loughlin
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3948

28 September 2022

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