2009668 (Refugee)

2009668 (Refugee) [2022] AATA 2268 (21 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009668
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Joseph Lindsay
DATE:21 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 May 2022 at 2:48pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – not a Communist Party member – unfair treatment – participation in Formosa toxic waste protests – credibility concerns – inconsistent information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 4 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Vietnam, applied for the visa on 4 June 2019. The applicant attended an audio hearing with the Tribunal on 10 December 2021 to give evidence and present arguments. 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 applicant made the following summarised claims in his written protection visa application. He claimed that he received unfair treatment from the Vietnamese government when he grew up in Vietnam. He claimed that he received unfair treatment because he was not a Communist Party member. He claimed that if he returned to Vietnam he would receive mistreatment, harassment, torture, threats and imprisonment. He claimed that he experienced harm in Vietnam. He claimed that he participated in protests against a company called “Formosa” who had illegally dumped poisonous waste into waterways and, as a result, he was threatened and harassed. He claimed he tried to seek help but was unsuccessful, and that he also tried to move to the south of Vietnam, but because he feared that his parents would be harassed and mistreated, he decided to stay put. He claimed that if he went back to Vietnam, he feared that the Vietnamese authorities would put him in a labour camp or torture him or put him in prison.
In the hearing, the applicant gave the following evidence. He claimed he was born in Thua Thien, Hue, in Vietnam on [date]. He said he grew up in Hue and he completed Year 12. He claimed he finished school in [year] and then went to work at the [named] factory making [product]. He said he did this job for six months, but he left that job because he was being monitored by the police. He said the reason why he came to Australia was because he was being monitored by the police.
The applicant said that after he left his job at the [named] factory, he went fishing with his father. However, he said that the fish were affected by poison released by a company called “Formosa” and his family could not survive because all the fish were dead. He said he then joined a demonstration and then he was persecuted.
When asked about his family, the applicant said his parents were still in Hue. He said he has an elder brother in Vietnam and his grandmother is in Vietnam. He said his brother was at home with his parents.
When asked where the [named] factory was, the applicant said the [named] factory had a branch in Hue and he was working at that branch. He said the main [named] factory was in Saigon. He said that he started work at the [named] factory in January 2019, and he did this job for six months. When asked why he left that job, the applicant said he quit. The applicant said that he was a salesperson, and he took the products from the factory to different places and sold the products to them. He said he sold [specified product]. When asked if he remembered the location of the [named] factory where he worked, the applicant said he was working for his former employer, who got the [product] from Hue. The applicant then said he did not directly work for the [named] factory. He said he was working for another person who worked at the [named] factory. The applicant then said he had worked directly for [the factory]. He then said he left his job on [date] May 2019. He said he remembered that date because he submitted “a written document” to quit the company. When asked for the reasons he gave to [named] for his resignation, the applicant said he said on his way to work he was persecuted too much, he was not free, and he did not have freedom to work. The applicant said these were the reasons he gave to his supervisor, and he also wrote these reasons in his resignation letter. When asked why he would tell his supervisor these reasons, the applicant said that he told his supervisor that a lot of police were monitoring him and he could not work freely and this was the reason why he quit his job.
In response to further questioning, the applicant then said that he never worked at the [named] factory and that he only ever worked out of an office in Hue. He said he would go from shop to shop asking them if they wanted to buy [named product]. He indicated his job was as a sales representative for [named] and he was living at home with his parents for the whole time he was in Vietnam.
He said he told his family he was being persecuted, and so his aunt and uncle invited him to come to Australia to become a refugee. He said that the police are now looking for him in Vietnam. He said he also told his mother, father and brother that he was being persecuted, and so he got a visitor visa to come to Australia, and then he applied for a protection visa. He said if he went back to Vietnam, the police would beat him and put him into prison because he participated in demonstrations and also the police had photos showing his grandfather who was killed in the war in 1975.
When asked if the Vietnamese police had ever harmed him or beat him or put him in prison in Vietnam, the applicant said no. He then said the police had threatened him that they would harm him and beat him and put him in prison. When asked why he would be threatened, he said he participated in protests about the release of poison into the seas. He said he took part in the protests in 2017 and 2018. He said he participated in several protests at the Formosa factory four or five times, and he also participated in other smaller demonstrations to ask for “equity” and “fairness.” He said he wanted compensation for the damage that Formosa caused to the seas and to the people who were unemployed because of “the poison on the high seas.”
When asked if he could explain what he meant, the applicant said he was talking about the demonstrations he had participated in against the Formosa company, and the right to fight for fairness and for compensation for his country and his family and the people of Vietnam.
When asked about the first demonstration he attended, the applicant said the first demonstration he attended was in August 2016 at the Formosa factory in Ha Tinh. When asked for further details, the applicant said he was at the demonstration which asked for the Formosa company not to release poisons onto the seas as it killed fish and affected his livelihood. He claimed that his family made their living from fishing, and because of the poison released by the factory, the fish were killed. He said he was [age] years old when he joined the demonstration. When the Tribunal put to the applicant that Ha Tinh is not in Hue, the applicant said that he caught the bus to go to Ha Tinh so he could go to the demonstration. He said that, on this occasion, he was taken to the police station and the police explained to him “the situation.” He said the police explained to him about the “influence of Formosa.” When asked what he meant, the applicant said the police asked about the “different steps of Formosa.” When again asked what he meant, the applicant said he was part of the group of people who were affected by the damage Formosa caused. When the Tribunal asked the applicant if he was arrested on this occasion, he said he was arrested and charged by police, and he was charged with “participating in the demonstration against Formosa.” When asked if he went to court, the applicant said he was taken to the police station. When asked if he went to court, the applicant said no. When asked if he was convicted of the charge, the applicant said he was convicted but he did not go to prison. Rather, he said that the police threatened him and then let him go.
When asked about the second time he was involved in a demonstration, the applicant said he took part on a demonstration in September 2017, again in Ha Tinh. He said he was not arrested in this occasion, but he then said the police arrested him in August 2017. The applicant confirmed he was arrested in August 2016 and also in August 2017. However, he said in September 2017 he was not arrested. He said that he attended a protest in August 2017 as well as in September 2017. He was asked about his arrest in August 2017, and he said he was taken to the police station and asked to write down the reasons why he was demonstrating, and, also, he was charged for demonstrating. When asked if he was convicted in August 2017, he said there was no conviction. When asked why there was no conviction, the applicant became evasive in his responses. When again asked why there was no conviction, the applicant said in 2019 they came to look for him. When again asked why there was no conviction in 2017 after he was arrested, the applicant said the police were waiting to see if he was going to commit the offence for the second or third time. The applicant then said “we were arrested and charged by the police but not taken to court.”
The applicant then said the next demonstration he attended was a week after that – being the fourth time. He said this demonstration took place in September 2017 and there were two demonstrations in September 2017, but he was not arrested at the second demonstration. He said some people were arrested but, on this occasion, he ran from the police. When the Tribunal put to the applicant that it would have been easy for the police to come and get him since he was living at home with his mother and father the entire time, the applicant said the police asked him to come to the police station but “they didn’t do anything.” He said that, on this occasion, the police in Hue were looking for him, and the police in Hue are still looking for him. He said he did not participate in any other demonstrations, and the last demonstration he attended was in September 2017. He said he remained in Vietnam with no further involvement with the police until he left Vietnam and came to Australia in 2019.
In respect to his protection visa application, the applicant said that he wrote his application in Vietnamese and then he got someone else to write the claims in English in his application for him. The applicant then said that all the information in the protection visa application was complete, correct and up to date in every detail as at the time it was submitted to the Department. He said he signed the protection visa application.
The applicant then said that he arrived in Australia [in] June 2019. However, the applicant then said that he did not post the protection visa application himself. Rather, the applicant said that someone in Vietnam did it for him. He then said that he signed the application about two weeks after he came to Australia in around July 2019.
The Tribunal then put to the applicant that it may not accept that he had given credible information in respect to his protection claims. The Tribunal put to the applicant that the date next to his signature on the protection application is 31 May 2010, and then the application was received by the Department on 5 June 2019 – which is before the time he said that he signed the protection visa application. In response, the applicant said he complete the form a long time ago.
The Tribunal then put to the applicant that on his application, he claimed he did not have assistance. In response, the applicant said he only had help in translating and did not have any other help.
The Tribunal then put to the applicant that in his protection application, he gave no information about his family and wrote “NA”, but in the hearing he said he had his mother, father and brother in Vietnam. The Tribunal put to the applicant that it may find he had not given credible information about his family. In response, the applicant said he was waiting to appear before the Tribunal to give more information.
The Tribunal then put to the applicant that in the hearing, the applicant had said he had been a sales representative for [named] selling [product] to different places around Hue on behalf of [named] for about six months in the first part of 2019, but in his written protection application he wrote that he was employed by [a] hotel in Vietnam, and that he was employed at the hotel from July 2018 until the time he left Vietnam. The Tribunal put to the applicant that it may find he had not given credible information about his employment history. In response, the applicant said that what was written was accurate but he could not remember all the dates.
The Tribunal then put to the applicant that in the hearing, the applicant had said he had completed Year 12, but in his written application he wrote that after high school he went on to study at [a named] College from January 2015 to June 2018. The Tribunal put to the applicant that it may find he had not given credible information about his education. In response, the applicant said he studied at [the named] College.
The Tribunal then put to the applicant that in his protection application, in response to question 73 (Have you been found guilty or convicted of a crime or any offence in any country?), he crossed the “no” box, but in the hearing, he claimed he had been convicted of offences in Vietnam. The Tribunal put to the applicant that it may find he had not given credible information about his criminal history. In response, the applicant said he was charged by police but he was not convicted. When the Tribunal told the applicant that earlier in the hearing he had said he had been convicted, the applicant said the court convicted him but he was not guilty.
The Tribunal then put to the applicant that in respect to his claims in his protection application, the applicant said:
-he received unfair treatment from the Vietnamese government when he grew up in Vietnam.
-he received unfair treatment because he was not a Communist Party member.
-if he returned to Vietnam he would receive mistreatment, harassment, torture, threats and imprisonment.
-he experienced harm in Vietnam.
-he participated in protests against a company called “Formosa” who had illegally dumped poisonous waste into waterways and, as a result, he was threatened and harassed.
-he tried to seek help but was unsuccessful, and that he also tried to move to the south of Vietnam, but because he feared that his parents would be harassed and mistreated, he decided to stay put.
-if he went back to Vietnam, he feared that the Vietnamese authorities would put him in a labour camp or torture him or put him in prison.
However, the Tribunal put to the applicant that in the hearing, he appeared to have made a range of claims that appeared to not be entirely consistent with his written claims. The Tribunal put to the applicant its concerns that his written and oral claims may not be credible. In response, the applicant said he wanted to provide additional information about what happened in the past.
The Tribunal put to the applicant that in the hearing, he indicated he had not been harmed in Vietnam, but that in his written claims, he stated he had been harmed. The Tribunal put to the applicant that the Tribunal may have concerns about his claims that he had been harmed in Vietnam because when asked to give further details about the harm he claimed to have experienced, he stated in his application:
I am conscious of the fact that social justice is a freedom that people are entitled to. I participated in protests against a company FORMOSA who had illegally dumped poisonous waste to waterways, and as a result I was threatened, harassed for my participation.
However, the Tribunal put to the applicant that in the hearing, he claimed to have participation protests in 2017 and 2018 and he appeared to change his evidence where on some occasions he said he was charged and on other occasions he said he was not charged and he also said he had been convicted of offences. The Tribunal put to the applicant that what he had said in the hearing about the harm he claimed he had experienced appeared to be different to what he had written in his application. In response, the applicant said he had all the evidence at home, and that he had family members who were in the Vietnamese army. He said his grandfather had been killed and his aunt and uncle had to leave the country. He said the Vietnamese government has persecuted his family and so he had to leave Vietnam.

The Tribunal put to the applicant that in his written application, he claimed that he did seek help when he was in Vietnam after he was harmed, and he said:
Yes, I tried to seek help but was unsuccessful.
The Tribunal put to the applicant that in the hearing, he indicated that he did not seek help when he was in Vietnam. In response, the applicant said he tried to tell the truth.
The Tribunal put to the applicant that in his written application, he claimed that he tried to move to the south of the country, but he stayed put fearing his parents would be mistreated. However, on the application, he ticked the “no” box in response to the question about whether he moved, or tried to move, to another part of Vietnam to seek safety. The applicant said that before he came to Australia, he went to different places in Vietnam. He said he went from one province to another, and then he went to Saigon to catch the plane to Australia. However, the applicant then admitted that he only ever lived in one place in Vietnam before he left Vietnam to come to Australia. In response, the applicant said he went to Saigon because there was no direct flight from Hue to Australia.
The Tribunal put to the applicant that it may find that if the Vietnamese authorities had any genuine interest in the applicant, he would not have been able to stay at home from 2017 to 2019 without incident from the police or he would have been stopped by the authorities at the airport if they had any genuine interest in him at all. However, the Tribunal then heard another person speaking to the applicant while he was giving evidence. The Tribunal then cautioned the applicant that it was not appropriate for other people to guide him in his answers while giving evidence to the Tribunal. The applicant then responded that there was no relationship between police and customs in Vietnam, so they were not looking for him.
The applicant said he had no further claims to make and no further information to provide.
The Tribunal put to the applicant that it may find that none of his protection claims were credible. In response, the applicant said that if he returned to Vietnam he would be persecuted and he would not have a peaceful life.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal holds great concerns about the applicant’s credibility. Indeed, the Tribunal is not satisfied that the applicant has given credible information in respect to his protection claims. The Tribunal finds that the applicant gave inconsistent information on multiple grounds.
The Tribunal finds that the applicant gave inconsistent information in respect to whether or not he received assistance in preparing his written protection application where on his application he indicated he did not have assistance in preparing the application, but in the hearing, he said he did have assistance in preparing his application. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information about his family members where in the hearing he had spoken about his family, including his mother, father and brother who were in Vietnam, but in his protection application he made no mention of his family members at all and wrote “NA”. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information about his employment history where in the hearing the applicant had said he had been a sales representative for [named] selling [product] to different places around Hue on behalf of [named] for about six months in the first part of 2019, but in his written protection application he wrote that he was employed by [a named] hotel in Vietnam, and that he was employed at the hotel from July 2018 until the time he left Vietnam. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information about his criminal history, where in his protection application, in response to question 73 (Have you been found guilty or convicted of a crime or any offence in any country?) he crossed the “no” box, but in the hearing he claimed he had been convicted of offences in Vietnam. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
Most significantly, the Tribunal has deep concerns about the applicant’s account of alleged persecution when he was in Vietnam. While in his written claims and oral account, the applicant was consistent about his alleged involvement in protests against the Formosa company for dumping poisonous waste that killed fish, there were many other instances of concern for the Tribunal about the details of the applicant’s claims.
The Tribunal is not satisfied that the applicant, nor his family, worked in fishing in Vietnam, or that he and his family were affected by any incident where fish were killed or affected by the dumping of poison into the waterways or seas. When giving his evidence in this respect, the Tribunal finds that the information the applicant gave was vague and lacking in the level of detail that the Tribunal would have reasonably expected the applicant could give if he had genuinely lived that experience. Likewise, the Tribunal is not satisfied that the applicant ever took part in protests of any kind when he was in Vietnam, let alone in respect to the Formosa factory. The Tribunal finds that the applicant was evasive and hesitant in his responses. Indeed, the Tribunal accepts that the applicant changed his evidence as the hearing went on. For example, in the hearing, the applicant said he participated in several protests at the Formosa factory four or five times, and he also participated in other smaller demonstrations to ask for “equity” and “fairness.” Yet when asked for details, the applicant only gave four instances of when he participated in a protest – once in August 2016, once in August 2017 and twice in September 2017. Even then, the applicant gave an evolving account of his participation in those protests with very little detail about his involvement. In addition, the applicant’s account of being arrested, charged and convicted in respect to his alleged involvement in the protests, or being charged and convicted, is simply not convincing. Overall, the applicant’s evidence at hearing continued to change and evolve in response to the Tribunal’s questions. In considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant’s claims have any credibility at all. Specifically, the Tribunal does not accept:
-he received unfair treatment from the Vietnamese government when he grew up in Vietnam.
-he received unfair treatment because he was not a Communist Party member.
-if he returned to Vietnam he would receive mistreatment, harassment, torture, threats and imprisonment.
-he experienced harm in Vietnam.
-he participated in protests against a company called “Formosa” who had illegally dumped poisonous waste into waterways and, as a result, he was threatened and harassed.
-he tried to seek help but was unsuccessful, and that he also tried to move to the south of Vietnam, but because he feared that his parents would be harassed and mistreated, he decided to stay put.
-if he went back to Vietnam, he feared that the Vietnamese authorities would put him in a labour camp or torture him or put him in prison.
The Tribunal finds that if the Vietnamese authorities had any genuine interest in the applicant, he would not have been able to stay at home from 2017 to 2019 without incident from the police or he would have been stopped by the authorities at the airport if they had any genuine interest in him at all. The Tribunal does not accept that the Vietnamese authorities have caused any issue to the applicant or his family in regard to any involvement his grandfather may or may not have had in the Vietnam War.
The Tribunal does not accept that the applicant ever participated in any protests in Vietnam, or was ever arrested or charged or convicted in Vietnam.
As the Tribunal has rejected the applicant’s claims in their entirety, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm.
The Tribunal is therefore 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.
Joseph Lindsay
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 2268

21 May 2022

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

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