2008572 (Refugee)

2008572 (Refugee) [2022] AATA 3594 (25 August 2022)
Corrigendum
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  2008572
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David James
DATE OF DECISION:  25 August 2022
DATE CORRIGENDUM
SIGNED:9 September 2022
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1.Paragraphs 20, 21 and 22 of the decision record are deleted as they duplicate paragraphs 25 and 26.

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  2008572
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David James
DATE:25 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 August 2022 at 12:46pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion and imputed political opinion – Buddhist imputed as anti-government – monitored and blacklisted by police – multiple departures and returns on own passports – consent to decision without hearing and arrangements to leave Australia – country information – applicant’s responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1), 5J, 36(2)(a), (aa), (2A), (2B), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 10 October 2019. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the primary applicants are a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act, and therefore was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 21 May 2020. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicants were represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) and s 5(1). 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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a risk that the applicant will suffer significant harm; or where the risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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.
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 issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Vietnam they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The primary applicant, when applying for the visa, stated that his family’s origins are that of Hoa Hao Buddhism and his claims are that:
a.as a Hoa Hao Buddhist his family is viewed as having an anti-communist political opinion as the religions spiritual leader was executed during the revolution by the communists;
b.he and his family are controlled, monitored and summoned for interrogation by the local police;
c.after visits to his daughter in Australia in 2015 and 2017 he and his wife were interviewed by the local police as to their activities in Australia during these visits, and then closely monitored by the local police. The local police have not harmed him and his wife, but have sought to find out whether his family has participated in any anti-communist government activities;
d.his family belongs to the blacklisted elements who are not permitted to move out of their current residences as the police want to keep them under their strict control; and
e.he fears that if he and his wife return to Vietnam the local police will summons them for interrogation about their trips to Australia and that they will possibly be arrested and detained and so isolated from their community and not entitled to social benefits like others in the community.
Department interview
The applicants were not offered an interview by the Department.
Invitation to attend hearing
On 1 August 2022, the Tribunal wrote to the applicants via their agent, Mr Tam Nguyen, the authorised recipient of all written correspondence as nominated in their review application. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 18 August 2022. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 15 August 2022 the applicants replied to the Tribunal indicating that they would not be participating in the scheduled hearing and that they consented to the Tribunal making a decision on the papers without taking further steps to allow them to appear. The Response to hearing form also contained a notation stating:
The applicants are making arrangement to leave Australia.
This matter has therefore been determined on the evidence before the Tribunal.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the primary applicant meets the criteria for the grant of a protection visa.
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicants chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
Country information
The Tribunal has taken into account, the DFAT Country Information Report Vietnam, 11 January 2022 December 2019, as relevant, including the information under the heading of ‘Hoa Hao’ at 3.43 to 3.45 which states that:
Hoa Hao is a Vietnamese school of Buddhism formed in 1939. It has had some political history, first opposing French colonialism then backing Ho Chi Minh’s nationalism and later supporting US-backed South Vietnam President Ngo Dinh Diem. Hoa Hao Buddhists mostly live in the Mekong Delta.
As with other religions in Vietnam, a distinction should be made between registered and unregistered congregations, and those that engage in political activity and those that do not. According to diplomatic sources quoted by the UK Home Office in a February 2020 report, the number of unregistered adherents is probably small and they live in remote areas with few economic opportunities. Several followers were sentenced in 2018 to between six and 12 years in prison for using loudspeakers to protest against Government treatment of the group and for spreading anti-Government messages on social media. Media reports describe alleged police beatings at unregistered Hoa Hao protests in 2019 and 2020.
DFAT assesses that adherents of registered Hoa Hao groups face a low risk of official discrimination. Unregistered Hoa Hao adherents face a moderate risk of official discrimination. Those who engage in anti-Government activities face a higher risk. Hoa Hao adherents may have low levels of education and political understanding which may expose them to further risk.
‘Political Opinion (Actual or Imputed)’ at 3.49 to 3.57 of the Report noting that at 3.56 to 3.57 it states:
Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
‘Internal relocation’ at 5.18 to 5.24 noting that at 5.18 and 5.19 it is reported that:
Internal relocation is common. Police keep close watch over relocation and citizens staying even one night away from their homes must register with local police. The 2020 US Department of State Human Rights Report states that this is enforced more strictly in the Central and Northern Highlands districts.
Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.
And ‘Treatment of Returnees sub heading of ‘Exit and entry procedures’ at 5.25 to 5.28 noting that at 5.25 the report states:
…In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
FINDINGS AND REASONS
The issue in this review is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm.
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicant chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. As such, the Tribunal has not relied upon the delegate’s decision record in forming its assessment and coming to its decision.
Country of reference
The primary applicant and his wife, the secondary applicant, claim to be citizens of Vietnam, and provided copies of their passports to the Department with the application for a protection visa. Based on this material the Tribunal finds that the primary applicant is who he says he is, and that the secondary applicant is who she says she is, and that they are both nationals of Vietnam, and assesses their protection claims accordingly.
There is no evidence that the applicants have right to enter and reside in a country other than their country of citizenship, Vietnam. The Tribunal finds that s 36(3) does not apply to the applicants.
Analysis
The Tribunal notes that it is for the applicants to make their case. In this case the Tribunal observes that the applicants have not provided a version of events with a level of detail necessary to satisfactorily establish the relevant facts of their case.
In this regard the Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well founded’, or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim or claims. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of a claim or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The applicants claim that their family origins are of Hoa Hao Buddhism and that his family is viewed as having an anti-communist political opinion as their religious spiritual leader was executed during the Vietnamese revolution by the communists. The primary applicant claims that his family has been and will be controlled, monitored and summonsed for interrogation by the Vietnamese police. He further claims that after he and his wife visited Australia in 2015 and 2017 to see their daughter they were interviewed by local police as to their activities in Australia and then closely monitored by the police. Although he states that he and his wife have not been harmed by the police, they claim the police have sought to find out whether his family had participated in any anti-communist government activities. As to this claim, the primary applicant has not provided any examples and/or details in this regard as to dates, times and locations but for indicating that this conduct occurred in 2015 and 2017. As such, the Tribunal finds these claims to be vague and without particulars and detail that can sufficiently satisfy the Tribunal that firstly he and his family are in fact members of this religious group, and secondly that any such interviews, controlling and monitoring of his family by the local police has occurred.
The available country information, as outlined above at paragraph 23 indicates that although adherents of a registered Hoa Hao group face a low risk of official discrimination and unregistered Hoa Hao adherents face a moderate risk of official discrimination, it is only those members of the religion who involve themselves in anti-government activities who face a higher risk of discrimination. Given the vague particulars provided by the applicants as to their religious background and involvement in their religion. The Tribunal is not satisfied that their purported membership of this religion is either actually known to the Vietnamese authorities or if it is so known, that they have a sufficient actual or imputed anti-government political opinion that would give rise to an adverse profile with the Vietnamese government. In this regard, the Tribunal notes that there has been no evidence from the applicants as to their involvement in any anti-government activities, nor do they purport to have expressed any anti-government sentiment but for their purported membership of the Hoa Hao Buddhist religion.
Further the applicants claim that their family has been black-listed and are not permitted to move out of their current residence as the police want to keep them under their strict control. The Tribunal has considered the relevant Country information as listed above at paragraph 23 and notes that such restrictions as to internal relocation are widespread and faced by all residents in Vietnam. As to the applicants claims of being ‘black-listed’, they have not provided any details as to their attempts to re-locate and examples of the police maintaining control of them through restricting them to their current residence.
As to the applicants fears that they will be summonsed for interrogation about their trips to Australia and possibly be arrested, detained and isolated from their community and denied social benefits by the police. These claims are made in the context of their reported desire to remain in Australia and seek protection. The Tribunal firstly notes that the applicants request for protection in Australia appears is inconsistent with the notation on the ‘Reply to hearing Invitation’ as outlined above at paragraph 18. Additionally, the Tribunal notes that the applicants were able to travel to Australia on three occasions, apparently departing Vietnam on international flights using their own passports without incident. The most recent departure being August 2019, after they had successfully obtained new passports in [2019]. Their ability to have travelled to Australian on these occasions and in 2018 to have obtained new passports are not consistent with their claims that they have an anti-communist political profile, are controlled, monitored and have been or will be summonsed for interrogation as to their Australian activities, nor that they face possible arrest, detention and isolation from their community and the exclusion from social benefits if they were to return to Vietnam.
For the reasons above the Tribunal does not accept the applicants claims due to the vague nature of the claims and the lack of detail that the applicants have provided. As such the Tribunal rejects the entirety of the applicants evidence and claims.
Refugee criterion
The Tribunal having considered all the applicant’s claims both individually and cumulatively does not accept any of the applicants claims and it is not satisfied that there is a real chance of serious harm for reasons of their claimed membership of the Hoa Hao Buddhist religion and purported anti-government profile with the Vietnamese authorities. The Tribunal is also not satisfied on the evidence before it that there is a real chance the applicant will suffer serious harm amounting to persecution for any other reason either. The Tribunal finds that the applicants fear of persecution is not well-founded as required by s 5J of the Act and therefore, the applicants are not a refugees within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicants are eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
Because the Tribunal does not accept any of the applicants claims, it finds that there is no real risk that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, that there is a real risk that they will suffer significant harm. The Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicants satisfies s 36(2) of the Act on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicants do not satisfy any of the criteria in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
David James
Senior Member

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

[2022] AATA 3594

25 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Appeal