2008893 (Refugee)

2008893 (Refugee) [2022] AATA 3660 (29 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  2008893
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David James
DATE:29 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants’ protection visas.

Statement made on 29 August 2022 at 11:54am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion and imputed political opinion – Cao Dai members suspected as anti-government – surveillance, monitoring, interrogation and blacklisting – no appearance at hearing – vague claims and evidence – multiple departures and returns and renewal of passports – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J, 36(2)(a), (aa), (2A), 65, 411(1)(c), 426A(1)(a)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB (2013) 210 FCR 505
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 26 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 15 December 2019. The delegate refused to grant the visa on the basis that they were not satisfied that the applicants were refugees as defined by s 5H(1) of the Act and 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. Further the delegate was 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 that they will suffer significant harm as defined on s 36(2A) of the Act. As such the delegate found that the applicants are not persons in respect of whom Australia has protection obligations as outlined 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 27 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 the application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants’ protection visas having considered the material before the delegate. The Tribunal is satisfied that the 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the’ real risk’ test was held to impose that same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
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 is 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
According to the Visa application the applicants arrived in Brisbane, Australia [in] August 2019 on Visitor visas. They had departed Vietnam the day before by way of Vietnamese passports in their own names. These passports had been issued by the Vietnamese Immigration Department [in] 2019 (primary applicant) and [in] 2019 (secondary applicant). The primary applicant states that they are members of the Cao Dai Religion and reports that the purpose of their travel to Australia was to visit his uncle who they state was a Caodaist Religious refugee who arrived in Australia in the 1990’s. The primary applicant claims they wished to get advice from his uncle as they claim they are under surveillance from local authorities in Vietnam due to their Cao Dai membership.
The applicants in their application claim that:
a.   as Cao Dai members they are under constant surveillance and are closely monitored in Vietnam and have been interrogated as they are suspected of being anti-communist;
b.   they fear being arbitrarily arrested, interrogated, tortured, and disappearing at the hands of the local police, and/or excluded from social benefits. As this is their third trip to Australia they are suspected to have been involved in anti-communist government activities in Australia; and
c.   they cannot relocate within Vietnam due to the household registration regime and cannot access state protection as they are ‘black-listed’ as members of Cao Dai.
Department interview
The applicants were not offered an interview by the Department.
Invitation to attend hearing
On 5 June August, 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 scheduled for 1.30 PM on 23 August 2022 at the Brisbane Registry of the Tribunal. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 22 August 2022 at 11:01 AM the Tribunal sent a SMS Hearing Reminder to the applicant’s [mobile telephone number] (the mobile number which the applicants had provided on their application for review form). The message read:
Reminder – Your AAT hearing is on 23/08/22. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
Later that day at 3:21 PM a Tribunal Officer telephoned the applicants representative Mr Tam Nguyen and discussed with him the Tribunal’s COVID-safe practices and asked him if there would be any pre-hearing submissions for the applicants. Mr Nguyen informed the Tribunal Officer:
That he would get in touch with the applicants and if there was anything to send to the Tribunal then it would be sent through that afternoon.
Later on 22 August 2002 at 3:25 PM the Tribunal forwarded an email to the applicants’ representative, Mr Tam Nguyen providing COVID-safe information as to the scheduled hearing of 23 August 2022. At 3:57 PM on 22 August 2002 the Tribunal received an email from the applicant’s representative in which he stated that:
The couple, [the applicant] and his wife, [the second applicant] have made an interstate holiday, not returning back to Brisbane yet. This is the information that has been received from their relatives in Brisbane.
On 23 August 2022 at 9:34 AM the Tribunal in a reply to the applicants’ representative’s email of 22 August 2022 (detailed above at paragraph 18) forwarded an email to the applicants’ representative in which the Tribunal stated that:
We brought your below correspondence to the attention of the Senior Member who will be conducting this hearing today.
In this regard, the Tribunal notes that the applicants have not made an application to adjourn this hearing. Given the applicant was notified on 5 August 2022 as to today’s hearing, there has not been any application to adjourn the matter nor any explanation as to their availability but for your email yesterday.
Please confirm that the applicants do not wish to make an application for adjournment. If there is to be a subsequent application, detailed information, an explanation as to why the adjournment should be consented to and why such an application has only been made at this late stage will be sought by the Tribunal in any such application.
Otherwise, the Senior Member has indicated that the hearing will be proceeding as listed.
At 11.12 AM the Tribunal unsuccessfully attempted to the call the applicants’ representative by telephone.
Review hearing - 23 August 2022 at 1:30 PM
The applicants did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Ten minutes after the scheduled commencement time a Tribunal Officer attempted to call the applicants on both telephone numbers that had been supplied to the Tribunal in their Application for review form. The Tribunal officer found that both of these numbers were disconnected. The applicants’ representative contacted the Tribunal at 1.50 PM on the hearing day by email, 20 minutes after the hearing was scheduled to commence stating:
In this case we suppose the hearing should be adjourned until we mee the clients in person at our office.
We were not able to reach our clients even until this morning.
During in July and August 2022 we received about twenty cases for hearing. They are out of our capacity as we are only one-staff office. We feel we have been flooded with the cases.
We are very sorry for some cases, which were not replied in time.
Thank you very much.
A Tribunal officer then attempted to contact the applicants’ representative on two occasions and at 1:55 PM reached the representative. The representative then spoke to a Tribunal Officer to whom he repeated his adjournment request as outlined in his email (see above).
The Tribunal has carefully considered the application for an adjournment, but given the circumstances of this matter, as outlined above at paragraphs 17 to 20, has found that there has not been sufficient information provided to the Tribunal for the Tribunal to exercise it’s discretion in adjourning this matter.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with the invitation sent via email to their nominated representative. Additionally, the Tribunal notes that a SMS hearing reminder was sent to the mobile phone number of the applicants as outlined above at paragraph 18. The Tribunal also emailed the applicants representative on the day of the hearing seeking further information as outlined above at paragraph 19. In these circumstances, and pursuant to s 426A (1A)(a) of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it
Country information
The Tribunal has taken into account the ‘DFAT Country Information Report Vietnam’, 11 January 2020, as relevant including the information under the heading of ‘Cao Dai’ at 3.46 to 3.48 which states:
Cao Dai is an indigenous syncretic religion established in the 1920s by Ngo Van Chieu who claimed to have spoken to God in a séance. The religion incorporates components of Buddhism, Christianity, Confucianism and Daoism. It is hierarchical (with Catholic influences) and has a pantheon of saints from various religious traditions. Its most famous symbol is an eye in a triangle symbol, which represents God.
As with other religious groups, members of officially registered Cao Dai groups can worship mostly without restriction. The US Department of State 2020 International Religious Freedom Report noted an incident in which an officially registered Cao Dai group disrupted an unofficial Cao Dai service in a private home, and another similar incident at a temple. The unregistered group accused the Government of using the registered group as a proxy to disrupt their activities. DFAT cannot confirm if these incidents were linked to Government action or whether they represent a split between the two groups; schisms have formed in the past.
DFAT assesses unregistered Cao Dai organisations face a moderate risk of harassment, and possible violence, from authorities or other groups such as members of other Cao Dai sects. Members of the officially registered group face a low risk of official discrimination. DFAT is not aware of societal discrimination against Cao Daists.
‘Political Opinion (Actual or Imputed)’ at 3.49 to 3.57 noting that at 3.57 it is stated that:
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 where at 5.23 and 5.24 it is reported that:
Without a local registration, access to services such as public education and healthcare becomes difficult; a local registration is required to access government services. A child cannot be registered without household registration documents and an identity card. It is possible to re-register in a new locale after moving, but this process can be lengthy and difficult, which deters some people. According to a 2019 fact-finding mission report by the UK Home Office, household registration is not a barrier to relocation; whereas previously major purchases such as a car required a local registration, these kinds of barriers have been removed over time. Still, registration would be required to sign up for utilities or internet service or obtain insurance.
Internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people. For example, women whose husbands die may have difficulty getting cooperation from their in-laws, or recently released prisoners might be refused registration by police who do not want ‘troublemakers’ in their district.
And ‘Treatment of Returnees (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 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 applicants meet the criteria for the grant of the protection visas.
Country of reference
According to the protection visa application, the applicants claim to be citizens of Vietnam and the applicants provided details of their passports with the application. Based on this material, the Tribunal finds that the applicants are who they say they are, and nationals of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicants claims for protection.
Analysis
The Tribunal observes that the applicants have not provided a level of detail necessary to satisfactorily establish the relevant facts of this case. Further, it is noted that, despite having received an unfavourable decision from the delegate, the applicants have apparently failed to maintain contact with their agent, the ‘authorised recipient’ of all written correspondence as nominated in the review application and failed to attend their review hearing of 23 August 2022.
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’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all 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 claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal has carefully considered the evidence as to the applicants claims both individually and cumulatively, and makes the following findings as set out below.
The applicants claim to be Cao Dai religious members and as such under constant surveillance and closely monitored in Vietnam. They further claim that they have been interrogated by the Vietnamese authorities and are suspected of being anti-government. In regard to these claims the applicants have not provided any details as to how, where, when, and with whom they practice their religion. Equally they have not explained how the Vietnamese authorities have identified them as Cao Dai but for their assertion that they have been interrogated by the authorities and are suspected as being anti-communist. The applicants have provided no evidence as to how or if they have been discriminated against and/or prohibited or restricted from practicing their religion and attending any Cao Dai religious meetings, gatherings or any congregations.
Given the serious nature of their claims as to being suspected of being anti-communist and having been the subject of surveillance, closely monitored and interrogated. The Tribunal finds it implausible, that the applicants would not have a clear recollection of the details of such surveillance, monitoring, and their interrogations together with the allegations that the authorities put to them in any such interrogation. Such vague claims without providing details of times, locations, and the particulars and the nature of the alleged surveillance, monitoring and interrogations cannot be accepted by the Tribunal as being accurate and truthful given the lack of detail provided by the applicants.
Further the applicants have not provided any information as to the issues or sentiments that their congregation actually promotes, or is imputed to promote, but to simply rely upon the religion as having a purported anti-communist profile. Additionally, the applicants have not identified whether they practice their religion within an officially recognised Cao Dai congregation or whether they are members of an independent Cao Dai congregation.
The Tribunal notes that the country information as outlined above at paragraph 23 does not support the applicants’ claims of a general practice of blanket persecution by the Vietnamese authorities of all members of this religion. This information also indicates that Cao Dai religious followers are not being specifically and routinely targeted by the Vietnamese authorities where such followers are not directly involved in, or, organising anti-government protests or disseminating and promoting anti-government sentiment. The Tribunal notes in this regard that the applicants have not provided any evidence that they have been involved in such anti-government conduct in Vietnam or in Australia.
Equally, the Country information relating to ‘Exit and Entry procedures’ strongly suggests that the applicants have not had, do not and presently will not in the reasonably foreseeable future have an anti-government, anti-communist profile given their ability to have departed Vietnam and travelled to Australia on three occasions. Additionally, the Tribunal notes that the applicants prior to their most recent arrival in Australia were able to renew their passports in Vietnam in 2019 and as such this is inconsistent with them having an anti-communist, anti-government profile with the Vietnamese authorities.
Therefore, the Tribunal finds that the applicants do not as members of the Cao Dai religion have an anti-government and/or anti-communist profile and that they have not been under constant surveillance, closely monitored, and interrogated in Vietnam as a result of their religious membership and practices.
The Tribunal also finds that the applicants’ claims as to fears of being arbitrarily arrested, interrogated, tortured, and disappearing at the hands of local police and/or excluded from social benefits if they were to return to Vietnam in the reasonably foreseeable future are not well-founded. Equally the Tribunal also finds that their fears that they are suspected or will be suspected in the reasonably foreseeable future of having been involved in anti-communist government activities in Australia is also not well-founded and not accepted by the Tribunal on the evidence before the Tribunal.
The Tribunal also finds that the applicants’ claim that they cannot relocate within Vietnam due to the household registration regime and cannot access state protection as they are ‘Black-listed’ as members of Cao Dai is not well founded. In this regard the tribunal does not accept on the evidence before it that the applicants have been ‘Black-listed’ and as identified above do not have an anti-communist government profile through their membership of the Cao Dai religion.
For the reasons above the Tribunal does not accept the applicants’ evidence due to the vague nature of their claims and lack of detail that the applicants have provided. As such the Tribunal rejects the entirety of the applicant’s evidence and claims.
Refugee criterion
The Tribunal having considered all the applicants 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 Cao Dai religion and their claim that they are suspected of having an 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 applicants 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 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 satisfy 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 a protection visa.
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 3660

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies