2009682 (Refugee)

2009682 (Refugee) [2022] AATA 4125 (30 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER: 2009682

COUNTRY OF REFERENCE: Vietnam
MEMBER:David James
DATE:30 August 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants’ protection visas.

Statement made on 30 August 2022 at 12:08pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – anti-government protests – political activities in Australia – anti-government views on social media – particular social group – failed asylum seekers – lengthy stay in Australia – fear of detention – household registration – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB (2013) 210 FCR 505
Subramaniam v MIMA (1998) VG310 of 1997
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 5 June 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 Vietnamese citizens, applied for the visas on 8 June 2019. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 10 June 2020. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the 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. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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
Issues
The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Vietnam they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The primary applicant when applying for the visa stated that he had left Vietnam and obtained a student visa to study in Australia and that he had two ambitions. Those ambitions were stated as being, firstly, to acquire skills and expertise from an Australian educational curriculum, and secondly, to breath freedom on Australian soil. The applicants’ in their application stated that they have engaged with the Australian culture of liberty and the democratic system which is completely contrary to the Vietnamese communist government rules which include arbitrary arrests, human rights abuse, and suppression of religion. Their claims for protection are stated in their application as:
a.     we are young educated people recognising such authoritarian rule and by one mean or another (media, face-book or similar) or joining underground group to promote anti-government. More or less we the young generation is involved such protesting against government;
The Tribunal has interpreted this statement to be that the applicants have expressed their anti-government sentiment on social media and have joined and participated in an anti-government group or organisation that protests against the Communist Vietnamese Government;
b.    my wife and I left Vietnam for a long time. We of course would be arrested, detained if we returned back there. The reason we have lived in Australia for along time we ware on the suspecting list of having activities against the communist government in Vietnam. We would like to be protected to continue breathing the freedom in Australia until the change of political atmosphere from dictatorship to democracy; and
The Tribunal finds that the applicants expressed fears are that they have been away from Vietnam for a long time and as they claim to be listed suspects for anti-government activities, they fear arrest if they return to Vietnam;
c.     The communist government in Vietnam uses the household registration book to strictly control the movement of people. Those blacklisted elements like us are not permitted to move out of the residential area. The reason is the local police wants to control our activities daily. They will arrest us at any time they want;
The Tribunal finds that the applicants in their application claim that they cannot relocate within Vietnam to avoid arrest for their anti-government activities.
Department interview
The applicants were not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 5 June 2020 to refuse the protection visas was made on the information before the delegate. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H(1) of the Act and were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, that there is a real risk the applicants will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the applicants were not persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Invitation to attend hearing
On 5 August 2022 the Tribunal emailed 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 25 August 2022 at 9:30 am 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 12 August 2022 the Tribunal notified the applicants through their agent that their hearing had been re-scheduled to commence at 1:30 pm on the scheduled hearing date of 25 August 2022. The applicants through their representative replied on 15 July 2022 to the Tribunal’s hearing invitation indicating that they would not participate in the scheduled hearing and consented to the Tribunal making a decision on the papers. The applicants’ representative attached the following material to the ‘Response to hearing invitation’ for consideration by the Tribunal in the Review:
a.    Statutory declaration dated 15 August 2022 and witnessed by the applicants’ representative Mr Tam Nguyen on that date. The declaration was under the hand of a person not related to this review and related to another unrelated person;
b.    A copy of a Queensland Birth Certificate in the name of [Son A] in which the applicants are named as the parents;
c.     two bridging visa notices in the names of the applicants;
d.    a copy of two un-translated apparent Vietnamese documents;
e.    copies of four educational certificates for [named English courses] in the name of [name], the primary applicant.
As to item a. above which apparently bore the primary applicant’s signature and was witnessed by his representative as outlined above, it did not apparently have any relevance to this matter. Therefore, the Tribunal on 25 August 2022 attempted to contact the applicants’ representative to seek clarification of it’s inclusion with the Hearing response form. After being unable to contact their representative the Tribunal forwarded an email to the representative seeking clarification of the inclusion of this document. The Tribunal’s own enquiry revealed that the statutory declaration related to an earlier unrelated review which had been finalised by the Tribunal in November 2021.
The applicants’ representative in an email response to the Tribunal as to the inclusion of item a. on 26 August 2022 stated that:
Yes, we did print the wrong statement. We apologise for the inconvenience.
Please find the correct attachment of the Statutory Declaration made by [the applicant].
The Tribunal notes that no explanation as to why and how the primary applicant’s witnessed signature came to be affixed to the unrelated declaration was provided by the applicants’ representative.
In relation to the other items submitted, the Tribunal has taken into consideration item b. the birth certificate of the applicants’ child, but has disregarded items c, d and e as they do not assist the Tribunal in its consideration of the applicants’ claims.
In the primary applicant’s declaration that was provided on 26 August 2022, he stated that:
a.     my claims for protection visa application 866 are our act of anti-communist government;
b.     I completed English courses for my [degree course], however, there was problem in my parent’s downturn business my study was interrupted. Even, my wife, [named], has a degree [specified] since 2012 has not had occasion to continue her study in Australia;
c.     I therefore applied for Protection Visa 866 with the expectation that my wife and I would be granted the visa to stay in Australia until there would be a change of political system of the government of Vietnam;
d.     We have our common son born on [date] at [a specified hospital] and is named [Son A]. We dare not apply Vietnam passport for our son as we are applying for Protection visa. Our son is now a stateless child as our Protection visa application was refused by DHA.
e.     Fortunately, my wife and I have been fully permitted to work since 02 March 2020. We are hopefully expecting that our Protection visa application would be successful at the consideration by the Tribunal. We would be good citizens of Australia, especially to raise our son born in Australia to become good citizen in Australia like us.
The Tribunal has taken the declaration into account and considers that it repeats the applicants’ earlier claims as outlined in their Visa application.
Country information
The Tribunal has taken into account the DFAT Country Information Report Vietnam, 11 January 2022 as relevant, including the information under the headings of ‘Political System’ at 2.28, ‘Political Opinion (Actual or Imputed)’ at 3.49 to 3.57 where at 3.57 it is reported 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, and ‘Treatment of Returnees (Exit and entry procedures)’ at 5.25 to 5.28 noting that at 5.25 that:
…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.
Also ‘Conditions for returnees’ at 5.29 to 5.35 noting that at 5.31 it is reported that:
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
And at 5.34 that:
Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
FINDINGS AND REASONS
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicants chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh including the additional material provided to the Tribunal and has made its own assessment and determination as to whether the applicants meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicants claim to be citizens of Vietnam and provided details of their passports with their 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 notes that it is for the applicants to make their case. In this case 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, despite having received an unfavourable decision from the delegate, the applicants failed to provide further details as to their claim but for a submission which repeated their claims and provided details of their son’s birth.
In this regard the Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The applicants claim to have expressed their anti-government views on social media and that they had joined and participated in protesting against the government with an anti-government underground group. They have not provided any evidence as to their social media postings, when and how such postings were made, which sites they posted to do and how they were or would have been identified as the author of such postings as to their purported political views. Further as to their claimed involvement with an anti-government underground group, they have not detailed how and when they joined, the name, membership and aims of the group, nor any details of their activities including the location and/or manner of their protests against the government. The Tribunal finds these claims vague and does not accept these claims given the complete lack of evidence before the Tribunal in support of such claims.
As such the Tribunal finds that there is no evidence before it to support the applicants’ assertion of having an anti-government political profile. In that regard, the Tribunal notes the country information as to ‘Exit and entry procedures’ as identified above at paragraph 19, which supports this finding given their most recent departure from Vietnam in 2014 without incident and their earlier ability to obtain passports in Vietnam in 2014.

As to the fears of arrest and detention claimed by the applicants due to the length of their absence from Vietnam and their claim to have be listed as suspects for anti-government activities. Again, no details have been provided by the applicants in support this claim. The applicants in this regard have not provided any evidence as to the source of this information, how they became aware of this information, nor the timing of their supposed inclusion on this purported ‘list of suspects’. On the evidence before the Tribunal, the Tribunal is not satisfied as to the veracity of these claims given the vague nature of these claims.
Given the lack of supporting evidence and the vague nature of the applicants’ claims as to their purported anti-government profile, supposed political social media posts, and their alleged involvement in an anti-government group as discussed above. The Tribunal does not accept the further claim that the applicants cannot relocate in Vietnam to avoid arrest due to the household registration scheme given they are blacklisted due to their purported anti-government activities either in Vietnam or Australia. As the Tribunal does not accept that the applicants have been involved in any anti-government activities or have an anti-government profile this claim is rejected.
In relation to the applicants fears of arrest and detention upon return due to their long absence from Vietnam the Tribunal notes the country information as outlined above at paragraph 18 under the heading of ‘Conditions for returnees’ which does not support the fears of the applicants. Given this information the Tribunal does not accept that the applicants would face arrest and/or detention on the basis of being failed asylum seekers d having been absent from Vietnam for an extended period. Further as to the claim raised in the applicants’ Statutory declaration as outlined above at paragraph 17 relating to their child being stateless. The Tribunal has considered the country information above at paragraph 18 in which DFAT reports that the Department is not aware of any cases of returnees being denied citizenship. Given this information the Tribunal rejects this claim.
The Tribunal has also taken into account that the applicants did not lodge their protection visa applications until 8 June 2019 after having arrived in Australia on 20 December 2014. The Tribunal finds that this delay is inconsistent with their claim of having been involved in an anti-government underground group and having expressed anti-government sentiment via social media which they appear to suggest was conduct that they completed in Vietnam prior to their last arrival in Australia. As to this delay the Tribunal has noted that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in the lodgement of a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.
Given the overall vague and unparticularised nature of the applicants’ claims as identified above, and that such claims are inconsistent with the available country information together with the delay in the application for the visa, the Tribunal does not accept the claims of the applicants. The Tribunal therefore finds that the applicants are unreliable as to their claims and do not have a well-founded fear of persecution.
For the reasons above the Tribunal does not accept that the applicants will be arrested and detained if they return to Vietnam.
Refugee criterion – s36(2)(a) of the Act
Based on the information before it, the Tribunal having considered all the applicants claims both individually and cumulatively, finds that the applicants do not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicants’ fears of persecution are 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.
Complimentary protection – s 36(2)(aa)
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 complimentary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal has found that the applicants have not provided a level of detail necessary to satisfactorily establish the relevant facts in this matter. Having regard to the Tribunal’s findings above, and that the Tribunal has rejected all of the applicants’ evidence and claims. The Tribunal does not accept 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 as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicants satisfies 36(2) of the Act on the basis of being a member 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 the criteria in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
David James
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4125

30 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction