1929841 (Refugee)

[2020] AATA 4244

1929841 (Refugee) [2020] AATA 4244 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929841

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jane Marquard

DATE:7 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 October 2020 at 9:52am

CATCHWORDS

REFUGEE – Protection visa – Vietnam – religion – Catholic– confiscation of the land – imputed political opinion – protests against the Formosa incident –student visa cancellation – last resort mechanism to remain in Australia – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 116, 418, 438,499,501

Migration Regulations 1994, Schedule 2, Schedule 8

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is [an] [age]-year-old citizen of the Socialist Republic of Vietnam (Vietnam). He first arrived in Australia [in] December 2013 on a [student] visa. This visa was cancelled under s.116 of the Migration Act 1958 Cth (the Act) on 24 October 2017. The visa was cancelled on the grounds of non-compliance with Condition 8202(a) which requires a visa-holder to be enrolled in a registered course. Information before the Department indicated that the applicant had not been enrolled in a course since February 2017. The applicant remained unlawfully in Australia after this time. The cancellation decision was affirmed on review by the Administrative Appeals Tribunal, differently constituted, on 3 April 2019. The Tribunal also found that the applicant had breached Condition 8531 of Schedule 8 to the Migration Regulations 1994 Cth (the Regulations), which requires that a visa-holder not remain in Australia after the end of the period of stay permitted by the visa.

2. The applicant applied for a protection visa under s.65 of the Act on 9 May 2019. He was granted a bridging visa in association with this application.

3. [In] July 2019 the applicant was charged with an offence of cultivating a commercial quantity of cannabis, and bail was refused. He was convicted and sentenced to 12 months imprisonment, after which he was taken into detention. His bridging visa was cancelled on 22 May 2020 under s.501 of the Act. The applicant requested revocation of this cancellation on 24 May 2020.

4. On 3 October 2019 a delegate of the Department of Home Affairs (the Department), refused the application for a protection visa.

5. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).[1] The question for determination by the Tribunal is whether the decision is the correct or preferable decision.[2]

   [1] s.25, Administrative Appeals Tribunal Act 1975 Cth

   [2] Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629

6. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criterion, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm. More details of the criteria and other relevant legal principles are set out below.

   RELEVANT LAW AND PRINCIPLES OF REVIEW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to 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.

   Refugee criterion

8. 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.

9. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).

10. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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–5LA, which are extracted in the attachment to this decision.

    Complementary protection criterion

11. 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 there are 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 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

12. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Rules of evidence

13. The Tribunal is not bound by formality and technicalities or rules of evidence, in reaching a decision, although the Tribunal may inform itself on any matter in such manner as it thinks appropriate.[3]

    [3] s.33, Administrative Appeals Tribunal Act 1975 Cth.

    President’s Direction

14. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. The Tribunal also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:

    ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[4] and

    ·that ‘generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[5]

    [4] At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 Cth, s.33(1)(b)).

    [5]At [8.1].

15. The hearing was held via video due to the COVID-19 pandemic as the applicant is in detention and the immigration detention centre is not currently transporting detainees to other locations. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and that the hearing provided a real opportunity to be heard.

16. In making these alternative arrangements, the Tribunal had regard to the objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see and that he could hear and understand the interpreter well. The Tribunal was able to interact with the applicant and the Tribunal were able to maintain line of sight and maintain appropriate communication throughout the proceedings.

    CLAIMS AND EVIDENCE

    The evidence taken into consideration

17. In coming to a decision, the Tribunal has taken into consideration information provided to the Department in relation to this and other matters, as well as evidence before this Tribunal. The Tribunal has also considered information from independent sources about Vietnam.

    Summary of evidence before the Department

18. The applicant made claims and provided information in his application forms and supporting documents. The applicant did not attend an interview with the Department.

19. A summary of his evidence follows.

20. The applicant was born in [Town 1] in Nghe An state, Vietnam in [year] and lived there until he came to Australia in December 2013. He is of Kinh ethnicity and is a Catholic.

21. His parents and [other] brothers are living in Vietnam. One brother is living in [another country]. His father is a devout Catholic and an active member of local churches.

22. The applicant completed high school in Vietnam in May [year]. In Australia he attended [a] University until December 2014 and [a] College until [May] 2015.

23. In his application forms the applicant said that his parents sent him to study in Australia in 2013 when they were comfortable financially. He claimed that in early 2016 the Vietnamese government drafted new land right laws which resulted in confiscation of the land of many families, including that of his family.

24. He claimed that his father led a group of protestors to protest against the land law. The group were arrested and tortured and some are still in prison, including his father.

25. The applicant said that he could no longer afford to renew his visa to continue studying.

26. He claims that he is terrified to return to Vietnam and will be strictly controlled as his father is in prison.

    Evidence from the Department file relating to application for revocation of the cancellation of his visa

27. The applicant requested revocation of the mandatory cancellation of his student visa.

28. In relation to his criminal charges, he said that he was very sorry for his mistake and said that he did not know it was a crime. He said that the mistake was the result of bad judgment and lack of life experience. He said he had paid the price, was reformed and had been trying to be better each day.

29. He said that when he committed the crime his partner was heavily pregnant, and he needed some work to support her and the baby. He said that he was vulnerable to people who had a bad intention to dupe him into crime that he was not aware of. He said it was his first offence. He said he is a good person in nature, and had an infant [child], who was [a specified age]. He wanted to be a role model.

30. He listed his family members in Vietnam, including his parents and [brothers], a grandfather, two grandmothers, two aunts and an uncle.

31. He said that his father was imprisoned for opposing the corrupt local government. He said that ‘my father is a devout Catholic and my father is well respected at the church, therefore when the Government treated Catholic faith badly, he stood up and was charged’.

32. A letter of support to [Court 1] from the applicant’s partner dated 30 April 2020 stated that she had known him since about 2017 and they had been living together since 2018. They had a child on [date].

33. A letter of support was provided from the applicant’s parents dated 20 April 2020 addressed to [Court 1]. The letter was signed by both parents and included the following:

    fulfilling his aspirations and also wishing him a better future, we have tried to make him study abroad in Australia. Previously, we traded in seafood, so the economy was quite stable, and we were able to provide (the applicant) to study abroad with a stable life. However from the beginning of 2016, due to the impact of marine environmental incidents caused by the waste discharge of the Formosa Factory, the marine environment was heavily polluted, especially in Nghe An, Ha Tinh and Qang Binh provinces. The aquatic species have died in mass, seriously affecting the lives of people, especially those who depend on marine fisheries as well as seafood traders, including our family. Since the marine environment is polluted, due to the fear of affecting the health, the demand for seafood sources of the people has dropped sharply, leading to seafood traders like us who have not been able to cope, and went in bankrupt, our lives are extremely miserable. From a well-off family, due to the aforementioned sea incident, it is forcing my family to borrow money, fall under difficult economy, decline health and mental, we could not find suitable jobs to get to provide our son with the opportunity to study abroad as before.

    Dear Court up to now, (the applicant) is a good child, good at school, very hard working and filial to his parents. Understanding the difficult circumstances of his family, so he wanted to earn more income to help his family, so outside of school time, he had to find more jobs to earn money to earn a living in a foreign country. During the work, due to his limited legal knowledge and lack of knowledge of the rules of the local country, he was arrested by authorities and is currently detained at the [Correctional] Centre, Victoria. Upon hearing this news, parents like us were deeply worried, all because he wished to help his family and have a little extra income to cover the life in a foreign country that (the applicant) has been entangled in prison.

    Summary of evidence before the Tribunal

34. The applicant appeared before the Tribunal on 15 September 2020 by video from a detention centre in Melbourne. The applicant was unrepresented. An interpreter assisted the Tribunal. The applicant confirmed that he was satisfied with the standard of interpretation. After the hearing the Tribunal provided the applicant with an opportunity to provide written submissions, which were provided on 30 September 2020.

35. A summary of the evidence before the Tribunal follows.

36. The applicant confirmed that he was born in [Town 1] in Nghe An state, Vietnam in [year]. He lived in this ‘small town’ with his parents and [brothers] until he came to Australia in December 2013. He has grandparents, uncles, aunts and cousins who all live nearby.

37. His parents owned their own house. His mother worked in [a] business, and his father was a peasant who cultivated and sold rice. The house and rice fields were passed down from the paternal grandparents. The rice fields were in another area from their home. Other family members also work in the rice fields. His family is still living in the same house, which they own. One brother is working [and] the [others] are at school.

38. His family are Christians. Asked what denomination they are, he said that Christianity was the religion. He attended church with his family when he was growing up on Sundays. The name of the church was [name], a ‘Christian’ church. They ‘listened to preachings’ and prayed. He was asked if he was christened as a baby. He said that he was baptised. Asked what age, he said his parents did not tell him as he was very young. He said he did not recall what happened. Asked if he attended anyone else’s baptism he said he did. Asked what happened at baptism, he said that he cannot remember the name of the church but the priest conducted a ceremony and then the priest used water to apply to the head of the person who was baptised.

39. In Vietnam they celebrated Christmas, but he had not done so in Australia. He also referred to the Cao Lao festival which friends and relatives would attend and then go home and eat.

40. He was asked if he knew the story of Christmas in the Bible and why Christians celebrate Christmas. He said it is the day of the birth of Jesus Christ. Asked how else he practises his religion, he said that he could not say anything else. Asked if he goes to church in Australia, he said that he goes every now and then. He said he went to a church in [a suburb]. He was asked what kind of church it was. He said that he cannot remember the name as it was in English. Asked when he last went, he said he cannot remember the date. Asked if he has been to any services in the detention centre, he said he has not.

41. He said that his parents and himself were not involved in any political groups in Vietnam.

42. He has a partner and a child in Australia. She came to Australia from Vietnam in 2013. He met her in Australia in 2017. She is applying for a protection visa. He was asked if he knows the basis upon which she is applying for a protection visa. He said that he did not ask her as it was something confidential to her.

43. He finished high school in Vietnam. After he finished high school, he came to Australia for study. His mother ran [businesses] and funded his travel and studies. He completed [a course] and then was about to transfer in a course in [another field], but his student visa was cancelled in 2017. He had not been enrolled since early that year. He remained in Australia unlawfully after this.

44. He confirmed that in July 2019 he was charged with an offence of cultivating a commercial quantity of cannabis. He pleaded guilty to the offence and was sentenced to 12 months imprisonment. He did not serve the full term and was released four days earlier than the term. After he was released, he was taken into immigration detention.

45. He said that he feared going back to Vietnam because in 2016 there was an incident that caused the fish along the coastal lines to die en masse. This was due to pollution from a factory called Formosa. His mother had a seafood [business]. Due to the lack of seafood, the business became bankrupt and the Catholic people in that area organised protests against the government because of the pollution from the factory. Because his parents participated, they were investigated and interrogated by the police many times and his parents told him not to return to Vietnam, as the ‘same things might happen to him’ if he returned. They were also concerned that he would join the anti-communist movement there.

46. The Tribunal asked the applicant to elaborate on the investigation and interrogation of his parents. He said that his parents have been ‘released to home and are under surveillance’. He was asked when they were investigated and interrogated. He said that they were investigated between 2016 and 2018. Asked to provide details, he said that the police came to his parents’ house and took them away. Asked how long they were taken away for, he said that it was for one or two years and then they were released, and ‘every now and then’ were taken back to detention. He then clarified that they were detained for one year in mid-2016 to mid-2017. His paternal grandmother looked after his brothers. His parents were charged with ‘anti-authority’ offences. He was asked if their case came before the court. He said that they were arrested for one year and then they were released. Asked if they were given any documents, he said that there was one document asking them to go to the Office of Public Security. He was asked if there were still charges against them. He said that there are not. The police did not do anything after that, but every now and then called them to the office for surveillance. He was asked if the church assisted them while in detention. He said that there were many other people who were arrested. They did not have a lawyer.

1. The Tribunal asked the applicant why if he returned to Vietnam the police would be adversely interested in him as he was not involved in these protests. He said that in Vietnam if the parents are anti-government, then the children are also affected. The authorities have strict surveillance against his parents. The Tribunal put to him that his brothers have not been targeted, nor any other relatives. He said that all members of his family are under surveillance. Every now and then the police will drop in to check on his [brothers].

2. In accordance with natural justice provisions in the legislation,[6] the Tribunal put to the applicant information that would be the reason or part of the reason for the Tribunal affirming the decision, as well as country information about Vietnam. The information, and the applicant’s response, are discussed in the findings section below.

   [6] s.424AA of the Act

3. Asked if there was anything further he wished to add or to tell the Tribunal, the applicant thanked the Tribunal, and said that he asked to be given one chance to remain in Australia, and look after his [child], whom he has not seen.

4. After the Tribunal hearing, on 30 September 2020, the applicant provided a submission as follows:

   I came to Australia in 2013 on student visa when my family back in Vietnam wanted me to have a better future. My parents were financially comfortable to support the idea which was considered important investment of their lives.

   While my student visa was about to expire in 2016, a tragedy struck our family economic situation hard which saw my family’s farming business and personal assets stripped by the corrupt policies of the Vietnamese Government.

   My father was jailed and unfairly treated as a dissident. It did change the family’s economic prospects as well as our lives forever.

   I could not afford to pay school fees to continue my study at the time, most importantly my family did not want me to return to Vietnam to be subject to potential persecution and harassment by the authority because we had seen similar cases happened in the country before.

   As my father’s imprisonment without being formally charged; the case was dragged on for years. Those re-enforced that my return was unsafe and not practical. Therefore I decided to apply for a Protection Visa with Australian Government.

   The delegate of Minister for Immigration did not look at my case seriously nor dig deep enough to exam the case. His/her opinions to make decision on my case was very general without thoughtful considerations.

   Independent country information

5. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

   DECISION OF THE DEPARTMENT

6. The delegate of the Department was not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in relation to his father’s protests, his asylum application or his criminal charges in Australia.

   FINDINGS AND REASONS OF THIS TRIBUNAL

   Nationality/receiving country

7. The applicant provided a copy of his passport of the Socialist Republic of Vietnam, issued [in] 2013. The Tribunal is satisfied on the basis of the passport and his oral evidence, that the applicant is a citizen of Vietnam, and that Vietnam is the receiving country for the purposes of the legislation.

   Section 438 Certificate (non-disclosure certificate)

8. The Tribunal has considered a preliminary issue concerning a s.438 Certificate issued by the Department restricting disclosure of certain information in the Departmental file.

9. The delegate of the Department placed this non-disclosure certificate on information in file [number deleted] of the Department’s file, pursuant to s.438(1)(b) of the Act. The reason given for the restriction is ‘disclosure of the information and the matters conveyed would be contrary to the public interest’ because they contain ‘information of a personal nature that was given to the Department in confidence’, and ‘it is information that may not already be known to the review applicant and has not been provided by the review applicant themselves to the Department’.

10. The s.438 Certificate certified that ‘whilst information is considered relevant to the decision under review per s418(3) of the Act; notwithstanding this, for the above reasons the Department considers these documents and any information contained therein should not be disclosed to the applicant or their representative. If the Tribunal proposes to disclose any matter contained in the documents or the information to the applicant in accordance with paragraph 438(b) of the Act, I advise that any and all information that identifies the source should be redacted’.

11. There are two issues for the Tribunal. Firstly, whether the s.438 Certificate is a valid certificate and secondly relevance of the information in the restricted folios, taking into consideration the statutory provisions and relevant case law.

12. The s.438 Certificate related to the following material:

    a.A memorandum from a Departmental officer to the Tribunal differently constituted in relation to the applicant’s application of review of the refusal to revoke the cancellation of the visa, referring to the protection visa applications of two other parties (the memorandum);

    b.A support letter from the applicant’s partner to [Court 1] dated 30 April 2020 and her passport;

    c.An ‘Application for Statement’ from the applicant’s parents dated 20 April 2020; and

    d.The applicant’s application for ‘Request for Revocation of a Mandatory Visa Cancellation’ under s.501(3A) to the Department.

13. In regard to the material listed in paragraphs (b), (c) and (d) above, the Tribunal is not satisfied that the s.438 Certificate is valid. These documents were provided by the applicant himself to the Department, and therefore are already known to the applicant. The Tribunal therefore discussed relevant aspects of this material with the applicant at the hearing.

14. In regard to the memorandum listed in paragraph (a), the Tribunal is satisfied that the s.438 Certificate is valid. The Tribunal is satisfied that the material was provided with the expectation that the material would be treated as confidential and would not be disclosed, and that the information is of a personal nature and not public or common knowledge.[7] The material in these pages was reviewed by the Tribunal. The Tribunal is satisfied that the material is of no relevance to this matter and the Tribunal did not take the matter into account in consideration of the issues in this case. The Tribunal is of the view that detriment to the party who provided the information[8] outweighs the interests of this applicant in knowing the information.

    [7] See SZTYV v MIBP [2018] FCA 1076, SZTYV v MIBP [2018] HCASL 382, Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41.

    [8] Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41.

15. However, the majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate/notification to the applicant in the review.[9] The Tribunal therefore disclosed the existence of the s.438 Certificate to the applicant and noted that it contained information relevant to his partner, but also advised him that it was not relevant to his claim and would not be taken into account.

    [9] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 at [2], [29]–[30], [45].

16. The Tribunal considers the material does not result in a loss of opportunity to advance the applicant’s case. The material in the documents does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal.

    Findings of fact in this matter

    The reasonable approach to fact-finding

17. The Tribunal is required in this matter to make findings of fact in relation to the claims, involving an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth,[10] and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[11] In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [10] Fox v Percy (2003) 214 CLR 118.

    [11] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

18. This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

19. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

20. The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. In this case, the applicant is unrepresented so does not have the benefit of a trained professional to assist him. A person may forget dates, locations, distances, events and personal experiences and not have the ability to put forward his or her best case. The Tribunal has also had particular regard to the Tribunal’s Guidelines on Vulnerable Persons,[12] in light of the fact that this applicant has been in detention, which, particularly during the COVID-19 pandemic, can be stressful and difficult.

    [12] AAT, Guideline on Vulnerable Persons, available on the AAT Website,

21. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[13] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal is also conscious that there may be factors that consciously or otherwise influence decisions,[14] such that decisions must be carefully made. The Tribunal has taken into account research which indicates Tribunal members may rely on assumptions which can be inconsistent with psychological literature,[15] and has taken care not to do so.

    [13] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, Bennett, H and Broe, G, The neurobiology of achieving a comfortable satisfaction, (2014) 26 Judicial Officer, Bulletin 8, 65-9

    [15] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal, International Journal of Refugee Law, 2018, Vol xx, No xx, 1-33

22. Taking all these matters into account, the Tribunal has made a number of ‘positive’ and ‘negative’ findings of fact.

23. The Tribunal is satisfied that the applicant comes from a Catholic family in [Town 1] and that he travelled to Australia in December 2013 to study. While he does not attend church regularly and appears to have only perfunctory knowledge of Christianity, there is no reason to dispute his assertions that he is a Christian as he had basic knowledge about some aspects of Christianity such as Christmas and baptism.

24. The Tribunal is also satisfied that the applicant’s family’s seafood business was adversely impacted by the Formosa Factory pollution incident in which waste discharge led to the death of many aquatic species. The Tribunal is satisfied that this led to bankruptcy and financial difficulties for the family and that they could no longer afford to pay for his study. Evidence about this incident was provided in a letter from his parents to [Court 1] as part of his criminal proceedings and referred to by the applicant at the Tribunal hearing. The incident is referred to in numerous country information sources. An article from Business Human Rights Resource Centre states that ‘in April 2016, large numbers of dead fish were found on the coasts of Ha Tinh, Quang Binh, Quang Tri, and Thua Thien Hue in Vietnam. The massive fish kill was caused by water pollution from toxic industrial waste discharged by a steel plant of Formosa Plastics. The company has admitted responsibility for the environmental disaster.’[16] The Vietnamese government said that the factory released a combination of chemicals, including cyanide into the sea.[17] The Tribunal accepts the applicant’s parents’ evidence that they traded in seafood, and demand dropped due to health concerns, causing their financial difficulties. This kind of experience is reported in numerous sources. For example, Radio Free Asia reports:

    The April spill – Vietnam's largest environmental disaster to date – killed an estimated 115 tons of fish and left fishermen and tourism industry workers jobless in four central provinces, including Ha Tinh.

    Two months later, Taiwan-owned Formosa Plastics Group acknowledged it was responsible for the release of toxic chemicals from its massive steel plant located at the deep-water port in Ha Tinh province's Ky Anh district.

    The Vietnamese government said in a report to the National Assembly in July of that year that the disaster had harmed the livelihoods of more than 200,000 people, including 41,000 fishermen.

    The company pledged U.S. $500 million to clean up and compensate people affected by the spill, but the government has faced protests over the amount of the settlement and the slow pace of payouts.[18]

    [16] Business Human Rights Resource Centre, Vietnam: Fish deaths blamed on Formosa Plastics; Taiwan Court dismisses Vietnamese farmers' lawsuit over environmental damage, 17 April 2020, New York Times, 30 June 2016, Radio Free Asia, Ha Tinh villagers protest in bid to get Formosa payouts in Vietnam, 29 March 2017, available at: >

    The Tribunal is not satisfied, as claimed in the application for this visa, that in early 2016 the Vietnamese government drafted new land right laws that resulted in the confiscation of his family’s agricultural land. The Tribunal is also not satisfied that the applicant’s father led a group of protestors to protest this law and the group was arrested, and that the applicant’s father is still in prison. The Tribunal is also not satisfied that the applicant’s parents were arrested for their involvement in protests against the Formosa incident nor that they were kept in detention for a year. The Tribunal is not satisfied that his parents have been under surveillance since then and are periodically called in by the authorities.

25. The reasons for these findings are set out below.

26. Firstly, the evidence the applicant provided in his Department application was so significantly different to the evidence provided to the Tribunal that the Tribunal concluded that these aspects of his evidence had been provided to bolster a refugee claim rather than being based in truth. The applicant said in his application that in early 2016 new laws resulted in the confiscation of his parents’ agricultural land. He did not refer to the Formosa incident. At the Tribunal hearing, he said that his parents protested because of pollution caused by the Formosa Factory, and this resulted in his parents’ arrest and interrogation. In his Department application he said that his father led a group of protestors against the land confiscation, and the group was arrested, and his father was still in prison. At the Tribunal hearing he said that his parents protested the Formosa incident and were both detained for one year between 2016 and 2017, and then were released, although they have been under surveillance since, and are called in to the office by the authorities now and then for surveillance. This information differs in relation to the central elements of the claims as to the harm suffered by his parents and the reasons he fears harm.

27. Secondly, information in a Statement to [Court 1], dated [April] 2020, signed by both his parents, is different to evidence that the applicant provided in his application to the Department, and to this Tribunal. His parents explained that the Formosa Factory waste discharge polluted the marine environment and that many aquatic species died. This affected their livelihood and they went bankrupt. They fell into difficult financial times and had to borrow money and were unable to fund their son’s study. Their evidence was different to that provided by the applicant in his Departmental application, in which he said that his father protested against appropriation of land by the government, leading to his arrest and was still in prison. It was also different to his evidence to the Department as part of his cancellation where he said that his father protested against the corrupt local government. The evidence was also different to that provided to the Tribunal, in that the applicant told the Tribunal that his father was arrested due to his involvement in protests over Formosa and had one year in prison in 2016 to 2017. The applicant’s parents wrote the letter to [Court 1] in April 2020 and no mention was made of appropriation of land, protests of any kind, arrest, detention, interrogation, surveillance or monitoring; or fears for their son in this regard.

28. Thirdly, the evidence provided in a hearing on 21 March 2019 before this Tribunal differently constituted in relation to the applicant’s student visa cancellation was significantly different to the evidence provided to this Tribunal. At that hearing he said that the reason he stopped studying was that his parents’ business went bankrupt in 2017. According to the decision record he ‘indicated that he recently spoke to his parents who indicated that everything was now okay and that he could pay his course fees’. There was no mention of protests, arrest and surveillance in the decision record. This evidence was more consistent with his parents’ letter in April 2020, and for this reason the Tribunal accepts this evidence, rather than evidence provided as part of this protection visa application and application for review.

1. Further the Tribunal differently constituted at the hearing on 21 March 2019 asked the applicant about the hardship he would suffer if his visa was cancelled. He said that he would suffer some hardship primarily because his parents and friends would look down on him because he could not successfully study in Australia and he felt that he would return as a failure. He did not mention fearing harm from the government because of his father’s arrest. The Tribunal is of the view that as he was directly asked a question about hardship he would suffer if he returned to Vietnam, if he feared harm from the government, he would have said so then.

2. These differences in evidence were put to the applicant at the Tribunal hearing on 15 September 2020, in accordance with the natural justice provisions in the legislation[19] for comment or response. The applicant responded that he did mention agriculture at the Tribunal hearing, but the interpreter may not have heard. The interpreter said that this was a possibility. The applicant said that his father was arrested again later and then released. The applicant also said that the letter was written by his parents for the Magistrate in relation to his criminal charges. Due to the nature of the charge, he was under consideration by the court and he highlighted bankruptcy and difficulty in relation to the family’s financial circumstances in order to make the Magistrate understand how he was lured into illegal actions of planting marijuana. He said that he did not want to have ‘political things’ included in the letter to the Magistrate. He said that in his visa cancellation matter the Tribunal differently constituted was asking him about his finances.

   [19] s.424AA of the Act.

3. The Tribunal has considered these submissions however the Tribunal is not satisfied that the submissions explain why there are such significant differences in key elements of the evidence. Firstly, it would be expected that his evidence to the Department and this Tribunal would be consistent given how close in time the evidence was given. The Tribunal would expect that on the key aspects of his claim – the reasons for his fear, and the arrests and release of his parents, there would have been consistency in evidence. However he told the Department that his father was arrested in relation to land protests, and was still in prison but did not mention the Formosa incident. In contrast, he told the Tribunal that both his parents were arrested for protests about the Formosa incident, between 2016 and 2017 for one year and then released (although he also claimed to have mentioned the land issue). Even if he did mention the land issue, it was the Formosa incident that was given prominence in his evidence, and he did not mention this in his application. He also said his parents had been detained for one year and released, which was different to his evidence to the Department, in which he said that his father was still in prison. He did not say that his father was re-arrested although he said he was called into the office for surveillance from time to time.

4. Furthermore, it would be expected that his parents would have mentioned the protests and the repercussions on them when they provided a statement to the court, as this could have helped the court in understanding the applicant’s behaviour. Further, in the cancellation matter, it would have been expected that had the applicant had a fear of returning to Vietnam for political reasons, due to his parents’ arrests, he would have mentioned this when specifically asked what hardship he would suffer if his visa was cancelled. The Tribunal does not accept that he was only being asked about financial matters as the question was open-ended. If the applicant genuinely feared serious harm it would have been expected that he would have spoken of his fear of the authorities.

5. In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[20] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may for example be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

   Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[21]

   [20] (1996) 40 ALD 445.

   [21] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

6. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

7. In this case, however, the aspects of the evidence which have been inconsistently articulated in different forums, are at the core of his claims. This is not the kind of matter where he has simply exaggerated one aspect of the claims. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor are decision-makers obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

   where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[22]

   [22] [1997] FCA 1198 at [11].

8. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. Courts have often reiterated that the Tribunal must consider the evidence in its entirety and not in isolated parts, see for example, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997). When considering the evidence as a whole, the Tribunal is not satisfied that the applicant’s evidence would be so inconsistent and that his father’s protests and detention would not have been referred to in his parents’ letter to the court, or in the applicant’s earlier evidence to the Department.

9. Taking these decisions and all the aspects referred to above into consideration, the Tribunal is not satisfied that the applicant’s parents were arrested, interrogated, put under surveillance or monitored because they took part in land protests or protests against the Formosa incident. The Tribunal is also not satisfied that the applicant’s siblings were put under surveillance.

   Does the applicant have a well-founded fear of persecution?

10. Under s.5H(1) of the Act, 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 themself of the protection of that country.

11. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

12. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the applicant have a fear of being persecuted?

13. Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugee Convention.

14. The Tribunal is not satisfied that the applicant fears being persecuted for one of the reasons set out in the legislation. As discussed above, the Tribunal is not satisfied that the applicant’s parents were involved in protests or were arrested for protesting against the government or in relation to the Formosa incident. The Tribunal is not satisfied therefore that the applicant fears returning because he would be harassed or arrested because of his parents’ political activities. Furthermore, the Tribunal is of the view that if he feared returning to Vietnam for this reason, he would have mentioned this in the revocation matter.

15. The Tribunal notes also that the Department’s decision to cancel the applicant’s visa was affirmed on review by this Tribunal, differently constituted, on 3 April 2019. The Tribunal also found that the applicant had breached Condition 8531 of Schedule 8 to the Regulations, which requires that a visa-holder not remain in Australia after the end of the period of stay permitted by the visa. The applicant then applied for this protection visa on 9 May 2019. The Tribunal is satisfied, given that it has not accepted that his parents were involved in political activity in Vietnam, that his application for a protection visa was a last resort mechanism to remain in Australia as his visa had been cancelled, rather than being based on genuine fear.

    Is there a real chance of serious harm?

    Political opinion

16. The applicant claims to fear serious harm on the basis of imputed political opinion due to his parents’ protests against the government. He claims that when he needs documents in Vietnam, he will be noticed and questioned.

17. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Refugee Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

18. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugee Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

19. The applicant claims to fear the authorities as his parents have been involved in protests against land appropriation or the Formosa Factory pollution incident. The Tribunal has not accepted, for reasons discussed earlier, that the applicant’s parents were involved in these protests or that they were arrested or monitored by the government. It follows that the Tribunal also does not accept that the authorities would be interested in the applicant. The Tribunal notes that even if his parents had been involved in political protests, there is no reason that the authorities would be adversely interested in him, as he departed the country lawfully and has had no political involvement. When it was put to him that persons who leave lawfully are not generally harassed by the government, he said that he cannot be sure and fears that he may be in trouble. The Tribunal is not satisfied that there is a real chance, that is, a substantial chance or a chance that is more than remote,[23] that the authorities would be adversely interested in the applicant.

    [23] Chan v MIEA (1989) 169 CLR 379

20. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his political opinion or imputed political opinion.

    Religion

21. In his application the applicant said that his father was a devout Catholic and active in the church, although he claimed that he was harmed for his imputed political opinions (protest against land/the factory pollution). He has not raised with the Tribunal claims of fear of serious harm for his religion.

22. The Tribunal has nonetheless considered whether the applicant has a well-founded fear of persecution for reasons of his religion, given that he mentioned Catholicism. He had also referred to his father protesting against treatment of Catholics in his visa cancellation case before the Department. The Tribunal is not satisfied that the applicant would face a real chance of serious harm for reasons of his religion. While he is a Catholic, he is not devout or highly committed as he appeared to have only basic knowledge of Christianity and has not attended church regularly in Australia. While religious leaders, particularly of independent churches have faced some persecution in Vietnam, DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from authorities, although they may still face discrimination from local and provincial authorities.[24] The Tribunal is not satisfied that the applicant would face discrimination of any sort, given that his interest in the church appears to be at a basic level, he does not attend church regularly and he is not a leader. Furthermore, while sources indicate that Catholics reside in most districts, provinces and cities, the highest concentration of Catholics is in central Vietnam (including his region Nghe An). In-country sources reported to DFAT that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.[25]

    [24] DFAT, Country Information Report Vietnam, 13 December 2019

    [25] DFAT, Country Information Report Vietnam, 13 December 2019

23. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his religion.

    Double jeopardy and membership of a particular social group of returnees with a drug conviction

24. While not specifically raised by the applicant the Tribunal considered whether there was a risk of the applicant being tried for the same offence if he returns to Vietnam.

100.   As discussed with the applicant at hearing, country sources indicate that in Vietnam there is no risk of being tried again for the same offence:

According to the Ministry for Justice, the principle of double jeopardy applies in Vietnam: persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.[26]

[26] DFAT, Country Information Report Vietnam, 13 December 2019

101.   The situation may be different where the sentence has not been served,[27] but that is not applicable in the applicant’s circumstances.

[27] DFAT, Double jeopardy and the death penalty in Vietnam, 12 September 2017

102.   The Tribunal also put to him that the Department searched for reports on mistreatment of people charged with drug offences in Australia who return to Vietnam. The Department did not locate reports of these people being harmed[28] although a number of Vietnamese have been deported for drug offences from countries such as Australia, Ireland, the United States of America and the United Kingdom.[29]

[28] Sources consulted included CISNET, UNHCR Refworld, ECOI, Google and local Vietnamese news sources

[29] Reuters, US seeks to deport thousands of Vietnamese protected by treaty: former ambassador, 12 April 2018; Voice of America, Vietnamese gangs blamed for surge in Australian cannabis production, 8 July 2018; Asia Times, Britain’s blood cannabis shame, 20 March 2017

103.   The applicant did not make any comments on this other than to say this was his first time for an offence.

104.   Considering the country information set out above the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of his criminal conviction in Australia.

Inability to subsist

105.   The Tribunal acknowledges that the applicant’s parents have suffered financially since the Formosa Factory pollution incident and that this may impact on their ability to support him on his return. The Tribunal is not satisfied however that he will be unable to subsist given that he has family and extended family in Vietnam, including [brothers], and the family does own a house and rice fields. One of his brothers is [working]. While economic standards are not as high as Australia, Vietnam has been described by the World Bank as one of the most dynamic emerging countries in East Asia, with high employment rates.[30] Furthermore, were he to suffer financial hardship, this would not be for reasons of race, religion, nationality, membership of a particular social group or political opinion, as required by the legislation.

[30] DFAT, Country Information Report Vietnam, 13 December 2019

106.   The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution on the basis of economic hardship.

Summary of findings in relation to well-founded fear of persecution

107.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.

Does the applicant meet the complementary protection criterion?

108.   If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: ‘the complementary protection criterion’.

109.   ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

110.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

111.   The Tribunal has not accepted, for reasons set out earlier, that the applicant’s parents were involved in protests, were arrested, interrogated, monitored or put under surveillance. The Tribunal is not satisfied that the applicant has a real chance of serious harm for reasons of his political opinion, imputed political opinion, religion, criminal convictions or possible economic hardship as set out earlier. For the same reasons, the Tribunal is not satisfied that there is a real risk, in the sense of a substantial or non-remote risk[31] of any of the kinds of significant harm set out in the legislation.

[31] Chan v MIEA (1989) 169 CLR 379

112.   The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

113.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

114.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

115.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).

DECISION

116.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Jane Marquard
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.

…

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.

…

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.

…

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 of 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 of persecution would not exist if it were assumed that the fear of 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.

…