2009151 (Refugee)

2009151 (Refugee) [2022] AATA 65 (4 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2009151

COUNTRY OF REFERENCE: Vietnam
MEMBER:Peter Vlahos
DATE:4 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 4^th January 2022 at 8.30AM
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – Respect Human Rights for Vietnam – Viet Tan Party – dissident groups – detention – fear of physical harm – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347
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

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 applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 8 January 2020. The delegate refused to grant the visa on the basis that the application for a Protection visa did not satisfy sub-section 36(2) of the Act.
On 1 June 2020 the applicant made an application to the Tribunal to review the delegate’s decision to refuse his application for a Protection visa.
On 21 December 2021 a Tribunal hearing was held to review the delegate’s decision via the means of a teleconference due to the state of emergency still in force in Victoria due to the persistence of the Covid-19 Pandemic.
The applicant did not provide any prepared statements or written evidence prior to the hearing and no witnesses were called to provide evidence in the applicant’s case or any written witness statements submitted.
The applicant was not represented at the hearing by a registered migration agent or legal counsel.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant, [named]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origins and the applicant’s personal identity
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Socialist Republic of Vietnam (‘Vietnam’) and has had his claims assessed against that country in relation to claims made pursuant to sections 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence (before the Tribunal), the Tribunal accepts and finds the applicant’s identity as is claimed proven for the purposes of this decision.
Department of Home Affairs File
The Tribunal has before it the Department File relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision record to the Tribunal with his application for review.
Background – the applicant’s migration and visa history
The applicant arrived in Australia on Student visa in 2011 and subsequently, on 20 January 2020 applied for a Protection visa (XA-866) which the Department refused to grant and is the subject of this review.
EVIDENCE AT THE HEARING
The Applicant’s Protection claims
The applicant’s claims for protection and the evidence provided by the applicant in support of his claims are contained in the Department’s File, [number]. The applicant’s claims for protection are summarised as follows:
§In late 2015, his father was arrested and charged for supporting a political group called Respect Human Rights for Vietnam, which has a connection with “Viet Van whose name was listed by the Vietnam Communist party as dissident”.
§The applicant’s father was jailed for [term]. The court case is still ongoing, and the applicant was told not to return to Vietnam just in case of any wrong accusations by the Vietnamese Government being made against him, which would lead to his arrest and future persecution.
§The applicant did not experience harm in Vietnam.
§If the applicant was to return to Vietnam, he would be wrongly accused of being involved with the group that his father was in. The applicant would then be arrested and tortured.
§The authorities will not protect him.
§He is unable to relocate to another area due to Vietnam being a one political party country.
The applicant made no further claims to the Tribunal for its consideration at the hearing. It should also be noted that the Department and the Tribunal have not been provided with any additional details, documents or further claims other than those which are already part of the application for review, now before the Tribunal for review, consideration and decision.
The applicant told the Tribunal that he had family living in Vietnam which consisted of his parents and sister which was not married. The applicant’s family resides in Ho Chi Minh City.
The applicant told the Tribunal that he completed his education in Vietnam. His education was described by the applicant as having successfully completed [grade] education. After completing [grade] in Vietnam, the applicant came to Australia to continue with his education.
The applicant told the Tribunal that he arrived in Australia in 2011 on a student visa. The student visa issued to the applicant allowed him to complete studies (as he described it) language studies – proficiency in the English language. The applicant said that he successfully completed his studies.
After completing his English studies, the applicant undertook studies in the [Qualification 1] which he told the Tribunal he successfully completed.
The applicant said that he proceeded to the next level of study in [this subject], which was the bachelor’s degree course, but he told the Tribunal he ‘dropped out’ because he could not find the finds for the payment of the fees.
The applicant said that his studies in Australia were not funded by his parents but by himself and found this difficult to do because he had to work and study at the same time.
The applicant said that his education was carried out at the private education institution known as the [name], in Melbourne.
The applicant admitted to the Tribunal that he is currently working on a full-time basis at [Employer 1] in Melbourne and earns approximately AUD$900.00 per week (with tax).
The Tribunal asked the applicant to describe the issues and circumstances of his father which caused him to fear retuning to Vietnam. The applicant said that his (sometime in 2015) was apprehended by the Vietnamese authorities and charged because he was supporting a political group called ‘Respect Human Rights for Vietnam’. According to the applicant’s description concerning this organisation, this organisation was in close ‘connection’ to the ‘Viet Van’. The applicant went on to state that this organisation had been listed by the Communist Party as a ‘dissent’ group.
The applicant said that his father had been jailed for his political activities and beliefs but had been released. The applicant told the Tribunal that his father spent time in prison in 2015 and was released in [2016].
The applicant said that his father had ‘many problems with the authorities since his release’ from prison. The applicant was asked by the Tribunal to explain – what were the problems his father had with the authorities? The applicant told the Tribunal that the ‘authorities’ had ‘threatened his family’.
The Tribunal asked the applicant to explain as to why the authorities were threatening his father and family? The applicant said that he asked his father about this but his father ‘refused to tell him’.
The Tribunal asked the applicant – can you tell the Tribunal anything about the ‘group – Human Rights for Vietnam’? The applicant’s response was to tell the Tribunal that he could not provide any information, because his father ‘chose not to tell him anything…’
The Tribunal asked the applicant – what did your father actually tell you about the ‘group’? The applicant repeated his response – ‘nothing’.
The Tribunal asked the applicant – if he had in his possession any documents relating to his father’s group and its activities? The applicant said that he had no documents.
The Tribunal asked the applicant – why was he afraid to return to Vietnam? The applicant’s response was to tell the Tribunal that his mother told him not to return to Vietnam because it was better to be ‘free’ in Australia.
The Tribunal asked the applicant to explain – why would the Vietnamese authorities wish to place him in detention when he had done nothing and had said nothing? The applicant’s response was to tell the Tribunal “…I do not know, but it would happen to me…” The applicant went on to tell the Tribunal that he “was quite scared…” and that he “…could not return…”
Finally, the Tribunal asked the applicant – if he had in his possession any documents concerning the issues he raised with the Tribunal? His response again, was ‘no’.

COUNTRY INFORMATION – POLITICAL DISSENT AND DISSIDENTS IN VIETNAM AND THE VIETNAMESE COMMUNIST PARTY
Vietnam is one of the world’s few remaining one-party communist states. Under Article 4 of the Constitution, the CPV remains the country’s only legal political party.[1]The CPV, through official and unofficial channels, controls all over major government decisions (including defence and security matters), and CPV members hold all senior government and military positions.[2]
[1] DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121 at p.14, this information appeared in the delegate’s decision record and adopted by the Tribunal in its decision.
[2] Ibid
In Vietnam the application of human rights standards has been limited by domestic legislation, which generally defines human rights as needing to comply with ‘the policies and interests of the State.’[3] Vietnam’s Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration. However, these are restricted by a number of “national security” provisions within Vietnamese law.[4] In practice, the Government does not tolerate political expression against the CPV, the Government or its policies.[5]
[3] Ibid, p.15
[4] DFAT Country Information Report Vietnam, Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121, p.25
[5] CISEDB50AD4597: Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 21 June 2017, p.14.
The Government has used specific laws to curb dissent, such as Article 109 of the Penal Code (“overthrowing the State”), Article 117 (“conducting propaganda against the State”) and Article 113 (“abusing rights to democracy and freedom to infringe upon the interests of the State”), all of which in practice take precedence over constitutionally enshrined rights. These offences carry penalties ranging from prison sentences of between six months and 20 years; to life imprisonment or capital punishment.[6] DFAT is not aware of any recent cases of the death penalty being applied for political activities.[7]
[6] DFAT Country Information Report Vietnam, Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121, p.25.
[7] CISEDB50AD4597: Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 21 June 2017, p.14.
Political opposition parties are illegal in Vietnam.[8] Opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention.[9] The Vietnam Reform Revolutionary Party (or Viet Tan) is a US-based opposition group (also with an active branch in Australia) that advocates for democracy in Vietnam.[10] Viet Tan was declared a terrorist organisation by the government in 2016 and the Vietnamese government has declared that anyone involved with the group is considered to be an accomplice in terrorism.[11] Other foreign-based opposition groups including the Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam[12] and who are reported to have links to the Viet Tan, have been accused of activities aimed at overthrowing the government.[13]
[8] 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019', UK Home Office, 09 September 2019, 20190917095808
[9] DFAT Country Information Report Vietnam, Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121,25
[10] Ibid
[11] 'Vietnam declares San Jose-based Viet Tan a terrorist group', Associated Press (AP), 07 October 2016, CX6A26A6E11016
[12] 'Vietnam: Drop Charges Against Rights Campaigner', Human Rights Watch (HRW), 10 September 2018, CXBB8A1DA35489
[13] DFAT Country Information Report Vietnam, Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121,25
In practice however, there has been only one known incident of a Vietnamese national Viet Tan member being subject to harm on return to Vietnam as a result of their activities in Australia. In November 2019, an Australian dual citizen, Chau Van Kham, a member of Viet Tan, was sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code)[14] and in March 2020 lost his appeal against his 12-year prison sentence for "financing terrorism".[15] He has been described as a prominent Australian democracy advocate who is a well-known member of the Vietnamese community in Sydney with a long history of campaigning for human rights in Canberra.[16] He entered Vietnam on a false identity and was arrested in Ho Chi Min City whilst meeting with a member of the Brotherhood for Democracy.[17]
[14] ‘DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121
[15] ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal', Special Broadcasting Service (SBS), 03 March 2020, 20200303091219
[16] 'Australia seeks consular access for detained activist in Vietnam', SBS World News Australia, 25 January 2019, 20190129115543
[17] ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal', Special Broadcasting Service (SBS), 03 March 2020, 20200303091219
DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation and are unlikely to receive a fair trial.[18]
[18] 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121, p.27.
The government prevents the exit and entry of individuals who openly express anti-government views. Several individuals considered to be political dissidents or activists, or their family members, have been prevented from leaving or returning to Vietnam, or have had passports confiscated or withheld on often vague or unexplained grounds.[19]
[19] 20190314094839: ‘Country Report on Human Rights Practices 2018 – Vietnam’, US Department of State, 13 March 2019, p.26.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular, the caution expressed by Foster J at 194:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some stringent evidence where a portion of it could reasonably have been accepted…”

The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” see: The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva (1992) at paragraph [196]. However, the UNHCR Handbook states at paragraph [204] as follows:
“…the benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…”
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true: see, MIMA v Rajalingam (1999) 93 FCR 220. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; also see, Selvadurai v MIEA & Another (1994) 34 ALD 347 at 348 per Heerey J and refer to Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant’s claims for protection considered
The applicant claims that he will experience harm at the hands of the Vietnamese state authorities because of his father’s alleged arrest, charge, and imprisonment for supporting a political group that was described to the Tribunal, as the ‘Respect Human Rights for Vietnam’, which also (it was alleged) had a connection with the ‘Viet Tan Party’, and therefore he- the applicant shared (or was imputed) with an anti-Communist government political opinion. These aspects of the applicant’s claims, the Tribunal for the reasons that follow does not find credible.
The country information the Tribunal has provided within this decision shows that political activists who have been identified by the Vietnamese authorities as problematic and a concern for the state have been subjected to frequent monitoring and even prevented from departing for whatever reasons that county.
The applicant’s evidence before the Tribunal, concerning his father’s activities as (was claimed) a ‘human rights defender’ and ‘activist’ do not equate to him (the father) being such an activist or at least one that has or has had a high political profile (within Vietnam) which would attract or had attracted the attention of the Vietnamese state authorities.
The Tribunal noted from its questioning of the applicant that he provided very little information concerning his father’s alleged political activities or any details about his father’s political group – ‘Respect Human Rights Vietnam’ and no detailed information concerning his father’s issues with the Vietnamese authorities which according to the applicant’s evidence had placed him in detention and subjected him (the father) to constant monitoring.
The Tribunal asked the applicant repeatedly to provide his version of his father’s activities as a political activist, but the applicant provided no knowledge of them and provided no description of his father’s claimed political activities. What the applicant told the Tribunal in evidence, was that his mother in a recent call to him told him not to return to Vietnam because he (the applicant) could be detained by the Vietnamese authorities if he was to return to Vietnam and this was because of his father’s politics and political opinion. In the same evidence before the Tribunal, the applicant told the Tribunal that his father was at home not in detention but that the authorities had ‘threatened him’ to desist from any political activities. The Tribunal does not learn from the applicant why a person of interest to the authorities is released to live at his home when he was of interest to them. Furthermore, the Tribunal does not learn any details about the state authorities’ ‘threats’ directed (as the applicant claimed) against his father – how frequent were and how these threats were carried out. Indeed, in considering the applicant’s evidence about his father’s (claimed) anti-government activities, the applicant provided responses that were short and lacking any detail concerning the issue as to why his father’s activities impede on his freedom – after all, these activities had occurred in 2015 after the applicant had left Vietnam for Australia. Moreover, the applicant had not in any way while in Australia, (in the evidence before the Tribunal) participated or had involved himself in any dissident-inspired political activities directed against the Vietnamese state authorities which do operate within the Victoria’s Vietnamese community. Therefore, the Tribunal is at a loss to comprehend why (on the evidence before the Tribunal) the applicant would be questioned or even subjected to detention by the Vietnamese authorities if he was to return to Vietnam in the near and reasonable future. He does not present as an individual that is of interest for any reason to the Vietnamese state authorities.
Also, there was no evidence before the Tribunal to support the applicant’s claim that his father was arrested, charged and imprisoned for supporting a political group called ‘Respect Human Rights for Vietnam’, which was also connected with the Viet Tan Party or for any other reason.
Therefore, on the basis of the information before the Tribunal, considered individually and cumulatively, the Tribunal is not satisfied there is a real chance that on return to Vietnam the applicant would suffer persecution for reasons relating to their actual or imputed anti-CPV political opinion. Also, the Tribunal finds that the applicant does not claim to fear harm in Vietnam for any other s.5J(1)(a) reason and no other reasons are apparent on the basis of the information and evidence before the Tribunal.
Furthermore, the Tribunal is not satisfied and finds on the evidence before it that the applicant does not meet the criteria for ‘refugee’ status as provided for in s. 5H(1)(a) of the Act.[20]
[20] Section 5H(1) provides as follows: Meaning of refugee; “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 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.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion complementary protection criterion in s 36(2)(aa). For the reasons provided by the Tribunal in paragraphs [49] to [57] above, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm because of his father’s dissident political beliefs, opinions or actions as a member of ‘Respect Human Rights for Vietnam’ which is also associated with the opposition/dissident political party group known as ‘Viet Van’ or that the Vietnamese state will detain or monitor the applicant if he returned to Vietnam because of any actual or imputed political beliefs which were considered anti-Communist Party of Vietnam.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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 65

4 January 2022

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