2009809 (Refugee)

2009809 (Refugee) [2022] AATA 4092 (4 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jack Ta (MARN: 0212473)
CASE NUMBER:  2009809
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Wayne Pennell
DATE:4 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 October 2022 at 11:16am
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political profile – father was an officer of the Army of the Republic of Vietnam (ARVN) – internal relocation – household registration book – failed refugee returnee – delay in seeking protection – marriage to an Australian citizen – referral for ministerial intervention declined – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (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 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 (the delegate) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]The delegate’s decision was provided to the applicant on 26/05/2020.
The applicants who claim to be citizens of Vietnam, applied for protection visas.[2] The delegate refused to grant the visas[3] on the basis that the applicants were not refugees as defined by the Act[4] and therefore they were not persons in respect of whom Australia has protection obligations as outlined in the Act.[5] 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, there was a real risk they would suffer significant harm and they were not persons in respect of whom Australia has protection obligations as defined in the Act.[6]
[2]The applicants’ application was received by the Department of Home Affairs on 21/01/2020.
[3]The delegate’s refusal was made on 26/05/2020.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicants were represented in relation to the review, and they filed their application with the Tribunal for a review of the delegate’s decision.[7] Accompanying that application was a copy of the delegate’s decision. At a subsequent time, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone.[8] The Tribunal invited the applicants to give oral evidence and present arguments at a hearing.[9]The applicants subsequently advised the Tribunal that they did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it.[10]
[7]Filed on 12/07/2020.
[8]On 03/08/2022.
[9]Hearing listed for 23/09/2022.
[10]The applicants advised the Tribunal on 07/09/2022.
At a subsequent time, the applicants’ representative provided to the Tribunal submissions on their behalf.[11] It was noted that within those submissions was a concession that the applicants did not meet the criteria of being a refugee as defined within the Act.
[11]On 15/09/2022.
This matter has therefore been determined on the evidence available to the Tribunal.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[12] That is, the applicant 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.
[12]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[13]
[13]Migration Act1958 (Cth), s 36(2)(a).
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.[14] 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.[15]
[14]Migration Act1958 (Cth), s 5H(1)(a).
[15]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[16] 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 the Act, which are extracted in the attachment to this decision.[17]
[16]Migration Act 1958 (Cth), s 5J(1).
[17]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[18] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[19] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[20]
[18]Migration Act 1958 (Cth), s 36(2)(a).
[19]Migration Act 1958 (Cth), s 36(2)(aa).
[20]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[21] Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[22]
[21]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
[22]Migration Act 1958 (Cth), s 36(2B).
Country of reference and Applicant’s identity
The applicants claim to be citizens of Vietnam and they provided a copy of their passports to authenticate this claim. The passports for [the first named applicant] was issued in Vietnam and the passport for [the second named applicant] was issued by the Vietnamese Consulate in Sydney.[23] The Tribunal accepts the applicants’ identity and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is their country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[24]
[23]Passports issued to [the first named applicant] [in 2017] and to [the second named applicant] [in 2013]: Applicants’ application filed with the Department 20/01/2020, page 1 and page 3.
[24]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations.[25]
[25]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE
The issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there exists a real risk that they would suffer significant harm or a real chance that they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[26]
[26]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicants claim they face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicants to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicants’ case for them. It is their responsibility to specify all particulars of their claim to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[27] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicants.[28]
[27]Migration Act 1958 (Cth), s 5AAA.
[28]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Within their application, only [the first named applicant] has outlined the details of her claims and the basis for making those claims. [The second named applicant] does not have his own claims.[29]
[29]Applicants’ application filed with the Department on 20/01/2020, page 31.
Within the application for a protection visa, it was outlined that at no stage did [the first named applicant] or [the second named applicant] experience harm when they lived in Vietnam, and the reasons why they left Vietnam was because [the first named applicant]’s late father had been a [rank officer] of [specified] Unit of what was formerly known as the Army of the Republic of Vietnam (ARVN) prior to the fall of South Vietnam in 1975. [The first named applicant] claimed that because her late father had been an officer in the ARVN, she is classified by the communist Vietnamese government as a person who is an enemy of the government. She claimed that because of this, her daily life in Vietnam had been disturbed by the local authorities, with her being monitored, followed and sometimes summoned for interrogation.
[The first named applicant] went on to claim that she was married to an Australian citizen with origins from Vietnam and was sponsored to re-unite in Australia in 2011. Her [siblings] in Vietnam experienced encounters with the local police who would ask about the reasons she migrated to Australia as the police did not accept that the reasons were for her to be married. [The first named applicant] went on to claim that because of the political climate within Vietnam, as well as her migration to Australia, she would be suspected of being involved with an anti-Vietnamese government organisation and she would be arrested if she returned to Vietnam.
[The first named applicant] considered the harm that would be inflicted upon her, and [the second named applicant] was the local police exercising their authority to carry out the harm which consisted of summonsing the applicants for interrogation and then detaining them, and in some case the applicants could be tortured as a means of interrogation.
When providing details within their application as to why they did not try to or could not relocate to another part of the country for protection and to avoid persecution or adverse treatment by the authorities, [The first named applicant] claimed that ‘elements’ like she and [the second named applicant] were not allowed to move out of their residential area because the local police wanted to keep them under surveillance and control their daily activities through the use of the household registration book. She went on to claim that the communist Vietnam government exercises a totalitarian rule, punishing anyone who opposes the government, and the only safe place within Vietnam for her, and [the second named applicant] is within a prison. The Tribunal notes that notwithstanding the claims made by the applicants, no supporting evidence in the form of a letter, statement, affidavit or statutory declaration was provided to the Tribunal to support their claims.
There has been no detailed information provided within the application which the Tribunal considers to be clear and relevant information concerning the applicants’ past experiences which necessarily enables the Tribunal to establish the subjective and objective elements of their case. There is no documentary or other credible evidence other than their own assertions within their application, and those assertions are not sufficient to allow the Tribunal to reach a conclusion about whether those events have taken place; and whether there is a likelihood of the alleged events occurring in the reasonably foreseeable future.
When carefully considering this case, in particular the applicants’ application, the Tribunal has concluded that the decision not to grant the applicants a protection visa should be affirmed because the Tribunal is not satisfied, on the evidence before it, that they have a well-founded fear of persecution for the reasons they claim. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm.
Applicant’s claims
Imputed political profile
Outlined earlier in these reasons was the principle that it is the applicants’ responsibility to specify all particulars of a claim to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify or assist the applicants in specifying any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish or assist in establishing their claims.[30]
[30]Migration Act 1958 (Cth), s 5AAA.
The applicants’ claims for protection are summarised to the extent that [the first named applicant] and [the second named applicant] arrived in Australia together [in] October 2011. At that time, [the first named applicant] was aged [age] and [the second named applicant] was a child aged [age], and he is now an adult aged [age].[31] [The first named applicant] is [the second named applicant]’s mother.
[31][The first named applicant] was born [date] and [the second named applicant] was born [date]. Applicants’ application filed with the Department on 21/01/2020, page 1 and page 3.
Within their application, [the first named applicant] outlined that neither she or [the second named applicant] had experienced harm when they lived in Vietnam and she fears that because of their imputed political profile, if they returned to Vietnam, they will be arrested, interrogated and detained by the Vietnamese authorities.
The Tribunal notes the delegate provided the applicants ample opportunity to provide all of the details of their protection claims, including all documentation or other evidence to support those claims.[32] When the applicants’ application was listed for hearing, the Tribunal also provided them with the same opportunity to provide any other information or evidence to support their claims.[33] On both occasions, the applicants declined the invitations to provide supporting material or evidence to the delegate and the Tribunal.
[32]Delegate’s invitation extended to the applicant on 28/01/2020.
[33]Tribunal’s invitation extended to the applicant on 30/08/2022.
The Tribunal is aware that the applicants have travelled out of and returned to Australia on a number of occasions since they arrived [in] October 2011 as per the below table which shows that [the first named applicant] departed and returned to Australia on eleven occasions, and [the second named applicant] on four occasions.

Date of Travel [The first named applicant] [The second named applicant]

[Oct-11] Arrived Arrived

[Jan-12] Departed

[Mar-12] Arrived

[Dec-13] Departed Departed

[Jan-14] Arrived

[Jan-14] Arrived

[May-14] Departed

[May-14] Arrived

[Apr-15] Departed

[Apr-15] Arrived

[Nov-16] Departed

[Dec-16] Arrived

[Jan-17] Departed

[Mar-17] Departed

[Apr-17] Arrived

[Apr-17] Arrived

[Jun-17] Departed

[Jul-17] Arrived

[Dec-17] Departed

[Dec-17] Departed

[Jan-18] Arrived

[Mar-18] Arrived

[Jul-18] Departed

[Jul-18] Arrived

[May-19] Departed

[May-19] Departed

[Jun-19] Arrived

[Sep-19] Arrived

[Oct-19] Departed

[Oct-19] Arrived

Returning to the applicants’ claims within their application, it is claimed that [the first named applicant]’s siblings were questioned by the Vietnamese authorities in regard to the legitimacy of [the first named applicant] travelling to Australia. The Tribunal notes that notwithstanding this claim, no supporting evidence in the form of a letter, affidavit, statement or statutory declaration from any or all of [the first named applicant]’s siblings has been provided to the Tribunal to validate or support this claim. The Tribunal finds this claim to be vague, tenuous and weak and it is rejected.

The Tribunal also notes that there is no evidence provided by the applicants, or members of their family in Vietnam to support their claims that because [the first named applicant]’s late father was an officer in the ARVN, adverse attention was paid to her by the Vietnamese authorities. The Tribunal finds that this particular claim is vague, weak and tenuous and it is rejected.
The Tribunal particularly observes that notwithstanding the claims about their imputed political profile, [the second named applicant] was able to successfully have his current passport issued by the Vietnamese Consulate in Sydney [in] 2013.[34] With respect to [the first named applicant]’s current passport, she indicated in their application that it was issued in Vietnam [in] 2017,[35] although her travel documents available to the Tribunal as per the above tables show that she was in Australia on that date. Had the applicants appeared at the review hearing, the Tribunal would have sought answers about those matters just identified.
[34]Applicants’ application filed with the Department on 21/01/2020, page 3.
[35]Applicants’ application filed with the Department on 21/01/2020, page 1.
The Tribunal is of the carefully considered view that the issuing of passports to the applicants by the Vietnamese authorities casts doubt on their claim that they are persons of interest to the Vietnamese authorities because of any imputed political profile.
After carefully considering all the information provided by the applicants, the Tribunal does not accept the applicant’s claim that if they were to return to Vietnam, they would be arrested, detained and interrogated because of an imputed political profile, and nor does the Tribunal accept that there is any basis for them to have a well-founded fear of persecution for reasons of imputed political opinion and their claims are rejected.
Claim – internal relocation – household registration book – failed refugee returnee
Within the generic application for a protection visa, there are a series of questions posed to the applicants, including the details of why the applicants would be unable to relocate within Vietnam to an area where they could be protected; and what they thought would happen to them if they returned to Vietnam.
Firstly, in regard to if they returned to Vietnam, the applicants proposed that if they were to return, they would be arrested, and detained immediately or be summoned to the local police station for interrogation, then arrested and detained. The applicants claimed that within Vietnam, there is no such protection from the communist Vietnamese government which rules with arbitrary arrest, suppression of religion and the only safe place in Vietnam is within a prison.
The applicants went on to claim that because the Vietnamese authorities have put them under suspicion as to the motives of them travelling to Australia, they will be restricted to live in their current residential area and not be permitted to move out of that area to anywhere else because the authorities want to control their activities.
It is claimed by the applicants that Vietnam is known worldwide to operate under the totalitarian regime of the communist government and there is an absence of any government or private agency to protect the victims or innocent people who sustain abuse from the power of the local police authority. If any individual wants to interfere so as to protect the victims, they will be punished in one form or another. Therefore, no governmental agency or private person dares to interfere to protect the people and the safest place for people like them is in prison.
The applicants proposed that the Vietnamese authorities use the household registration book to strictly control the movement of citizens and any person who wants to move to another part of the country has to get permission from the local police. The applicants claim that people like them are not permitted to move out of their current residential area as the authorities want to keep them there for easy controlling.
The Tribunal has carefully considered the applicants’ claims that they are under suspicion because they travelled to Australia and would be restricted from relocating to another area within Vietnam. It is noted that the country information contained within the DFAT report provides that activists, or persons of interests, are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.[36]
[36]The DFAT Country Information Report for Vietnam dated 11/01/2022, pages 18 – 19, paragraph 3.56.
Notwithstanding those restrictions, the Vietnamese constitution allows citizens to freely travel abroad and return home from abroad in accordance with the provisions of the law. In practice, the Vietnamese government imposes limits on entry and exit for political activists and government critics through its exit control list which controls the movement of people such as persons of interest, criminals and people subject to court orders across its borders, and these people may be prevented from leaving Vietnam.[37] The control of movement of people is also achieved by refusing to issue passports or laying criminal charges to prevent travel and is sometimes used against the families of persons of interest.[38]
[37]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 32, paragraph 5.26.
[38]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 32, paragraph 5.25.
Notwithstanding [the first named applicant] suggesting that her siblings in Vietnam were questioned by the authorities about her travel to Australia, the Tribunal notes that there is no evidence to support this claim, including any statement, affidavit or letter from any of the applicants’ family members in Vietnam to validate this claim. The Tribunal does not accept this claim and it is rejected.
When giving careful consideration to the information provided by the applicants to substantiate their claims, the Tribunal is of the view that they have not provided any evidence, information or examples which supports the proposition that they have a well-founded fear that if they returned to Vietnam they will be arrested, interrogated or detained and prevented from relocating within Vietnam because they possess any type of political profile, imputed or otherwise. The Tribunal notes that the applicants claim that if they returned to Vietnam, they will be harmed by being arrested, detained and interrogated because [the first named applicant]’s late father was a former officer in the ARVN, and she travelled to Australia. On the evidence before it, the Tribunal does not accept that there is any basis for the applicants to have a fear in regard to their claims.
In respect to the applicants returning to Vietnam, the country information within the DFAT report provides that although the Vietnamese authorities may occasionally question returnees from Australia upon their arrival in Vietnam, this interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. The DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[39]
[39]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 33, paragraph 5.31.
The Tribunal also notes that the applicants disclosed within their application that they had not personally experienced any harm, or had any harm caused to them by the Vietnamese authorities.[40] In respect to the applicants’ application for protection within Australia, and how that may be perceived by the Vietnamese authorities, the country information within the DFAT report provides that being a failed asylum seeker is not generally stigmatised and the DFAT is not aware of cases of returnees being denied citizenship.[41]
[40]Applicants’ application filed with the Department on 21/01/2020, page 30.
[41]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 33, paragraph 5.34.
Having carefully considered the applicants’ claims in regard to her being a person of interest because of an alleged imputed political position, and being subjected to the household registration book, along with assessing all the information provided by the applicants and the country information within the DFAT report, the Tribunal finds that the evidence in this matter does not support the applicants’ hypothesis that they possess an imputed public political profile within Australia or Vietnam, or that they are persons of interest to the Vietnamese authorities which restricts their movements or relocation within Vietnam. The Tribunal also finds that their claims to be vague, weak and tenuous and the claims are rejected.
Delay in lodging an application for protection
Turning to discussing the applicants’ delay in lodging an application for a protection visa, it was their evidence that [the first named applicant] and [the second named applicant] arrived in Australia [in] October 2011. Their application for a protection visa was made on 21 January 2020, a lapse of over eight years since their arrival.
In respect to any consideration about the delay between the applicants’ arrival in Australia and their application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicants do not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[42] and the Tribunal particularly notes that the applicants offered no explanation as to the extraordinary delay in making their application.
[42] Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423; Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370, [22].
The Tribunal has considered the applicants’ delay in applying for protection in Australia and concludes that the noteworthy delay casts significant doubt on the genuineness of their claims that they have a well-founded fear of persecution if they were to return to Vietnam. The delay in lodging their protection visa application adds weight to the finding that their claims do not appear to reflect the reality of their circumstances.
The Tribunal observes the applicants have not provided a level of detail or specificity necessary to satisfactorily establish the relevant facts of their case and notwithstanding they received an unfavourable decision from the delegate, they chose not to give oral evidence and present arguments at a review hearing.
The Tribunal is mindful of the principle that the mere fact the applicants claim to have a well-founded fear of persecution for a particular reason or reasons, does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reasons claimed. Similarly, simply because they claim that they will face a real risk of significant harm should they return to Vietnam does not establish that such a risk exists or that the harm feared amounts to significant harm.
Noting that the applicants primarily rely upon the assertions within their application as a basis for a protection visa, it still remains their responsibility to satisfy the Tribunal that all of the statutory elements are made out. The Tribunal is not required to make the applicants’ case for them, and it is their responsibility to specify all the particulars of their claims that they are persons in respect of whom Australia has protection obligations. They should also provide sufficient evidence to establish the claim or claims. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of a claim or to establish or assist in establishing the claim.[43] Nor is the Tribunal required to accept uncritically all the allegations made by the applicants.[44]
[43]Migration Act 1958 (Cth), s 5AAA.
[44]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
The Tribunal is of the view that any reasonable assessment based on all the claims raised by the applicant and the evidence they used to support those claims would conclude that there is not a real chance of them being subjected to persecution in Vietnam for any of the reasons provided in section 5J(1)(a) of the Act.
Therefore, the Tribunal does not accept that the applicants are refugees as defined in section 5H of the Act, and nor have the applicants satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to them.
Should the Tribunal make a referral to the Minister
When listing the applicant’s application for a hearing, the Tribunal advised their representative of the date, time and place of the hearing.[45] At a subsequent time, the applicants’ representative advised the Tribunal that the applicants waived their entitlement to a hearing and a submission for the Tribunal’s consideration will be provided prior to 16 September 2022 seeking the Tribunal’s referral of this matter to the Minister.[46] The applicants’ representative appropriately enclosed a response to the hearing invitation.
[45]Tribunal’s email to the applicants’ representative on 30/08/2022 at 9:52am.
[46]Applicants’ representative’s email to the Tribunal on 07/09/2022 at 5:50pm.
As the applicants’ representative had advised the Tribunal, submissions were made with the flavour of those submissions addressing the current circumstances of [the first named applicant].[47] Accompanying those submissions was a copy of a marriage certificate showing that [the first named applicant] had married her current husband, [Mr A] [in] July 2022 and a copy of [Mr A]’s passport, although it is noted that the passport has expired. Further communication was received from the applicants’ representative which enclosed a copy of a patient health summary from [a medical] Clinic and a discharge summary from [a] Hospital. Both documents relate to [Mr A].[48]
[47]Applicants’ representative’s email to the Tribunal on 15/09/2022 at 6:11pm.
[48]Applicants’ representative’s email to the Tribunal on 16/09/2022 at 11:03am.
The applicants’ representative outlined in the submissions made on behalf of the applicants that since 30 April 2021, he has been engaged to assist with their application. Since then, he has had numerous conversations with [the first named applicant] and clearly, [the first named applicant] is not a person in respect of whom Australia has protection obligations as outlined in the Act.[49]
[49]Migration Act 1958 (Cth), s 36(2)(a) and s 36(2)(aa).
The Tribunal observes that no supporting evidence in the form of an affidavit, statement or statutory declaration has ever been provided by either [the first named applicant] or [the second named applicant] to the delegate or the Tribunal which would support their protection visa application, or indeed support the purported propositions outlined within the submissions provided by their representative. Nor has there been any affidavit, statement or statutory declaration for any other person who may be able to offer or provide evidence or to support those claims made, or the propositions outlined within the submissions.
In the submissions, it was explained that [in] October 2011, [the first named applicant] and [the second named applicant] arrived in Australia on a prospective marriage (subclass 300) visa and [the first named applicant] subsequently married her ex-husband [Mr B] [in] October 2011. At that time, [the second named applicant] was [the first named applicant]’s dependent child.
The relationship between [the first named applicant] and [Mr B] broke down and ended in divorce in March 2016. Following her divorce, [the first named applicant]’s combined partner visa applications (subclass 820/801) were refused, and in February 2019 the Tribunal also affirmed the decision to refuse her a partner visa. The submissions outlined that [the first named applicant] had been placed under immense stress and mental torment due her ex-husband’s abusive behaviour and gambling addiction. At this point, the Tribunal will note that [the first named applicant]’s application for a protection visa was made on 21 January 2020, almost eleven months after the Tribunal refused her partner visa application, and almost four years after her divorce from her first husband.
The submissions went on to suggest that in December 2015, [the first named applicant] commenced a new romantic relationship with [Mr A]. A year later, [the first named applicant] and [the second named applicant] moved into [Mr A]’s house in December 2016. The Tribunal observes that by this time, [the second named applicant] was no longer a dependent child and was aged 18. [The first named applicant] and [Mr A] married [in] July 2022.
After living together for three years, in August 2019 [the first named applicant] and [Mr A] obtained their civil partnership certificate. [Mr A] is diagnosed with suffering from a medical condition called Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) and a secondary condition of Type 2 Diabetes. He needs long-term follow-up consultations with doctors, specialists and requires special constant care by [the first named applicant]. The submissions also outline that [the second named applicant] also has a medical condition and suffered from focal epilepsy, although the Tribunal notes the absence of any medical reports or other documents to validate that claim. Because of [the second named applicant]’s medical condition he could not study or work properly and [the first named applicant] is the primary caregiver of both [Mr A] and [the second named applicant].
In support of [Mr A]’s medical conditions, the medical reports discussed earlier in these reasons were provided, although the Tribunal notes that there is absence of a report from [Mr A]’s treating doctor or specialist. The Tribunal recognises the request made within the submissions that the Tribunal delay its decision until those medical reports could be provided. Having considered the medical material already made available, the Tribunal accepts on a prima facie basis that [Mr A] suffers from the medical conditions as described in the submissions. Notwithstanding that, it is the Tribunal’s view that the provision of further medical reports relating to [Mr A]’s medical condition would not advance the applicants’ position with respect to their substantive application.
The submissions went on to suggest that it is reasonable to expect that [Mr A]’s critical medical conditions require the constant care and support of [the first named applicant]. She has been his primary caregiver, taking [Mr A] to the hospital and his doctor for every treatment, hence she closely understands his situation which has caused significant degradation in his health. [Mr A] struggles with his everyday activities and body mobility and he requires a prosthetic leg and crutches to walk around, but mostly remains in a wheelchair because of the complications associated with his diabetes. Because of the crucial stage in [Mr A]’s health condition, he requires [the first named applicant]’s constant and extended care and support.
It was further outlined in the submissions that [the first named applicant]’s presence in [Mr A]’s life has been significantly important to maintain secure, loving and unconditional love of the family unit and no one else in [Mr A]’s family including parents, siblings or children could provide to him the extent of care that [the first named applicant]. [The first named applicant] fears the possibility of [Mr A] not being able to meet her if she and [the second named applicant] had to leave Australia and that this would lead to degradation of [Mr A]’s physical and mental health and cause irreversible trauma on his part. If the applicants cannot be granted a valid visa to remain in Australia, then the possibilities include that [the first named applicant] and [the second named applicant] would have to depart Australia. Given [Mr A]’s poor health and condition, this could have detrimental effects upon him.

The submissions outlined that [the second named applicant] has been living in Australia since he was [age] years of age and has completely integrated into the Australian community and way of life. He has developed a strong bond with [Mr A] and [Mr A]’s parents and is an integral part of the family unit. Additionally, it has been requested his seizures are monitored closely by his doctor and noted he is not fit to travel such a long distance, although the Tribunal repeats that there has been no supporting independent evidence provided to validate the claim in respect to [the second named applicant]’s current medical condition.
It was also submitted that if the applicants were unsuccessful in their endeavours to remain in Australia, they would face incredible financial hardship if they were to return to Vietnam, given that [the second named applicant] would not be able to obtain paid work nor live a normal life. Again, the Tribunal notes the absence of any evidence to validate or support that claim. A further point identified in the submissions was that Vietnam does not have the same acceptance within its society and the advanced healthcare system to accommodate mental illnesses and the criticism and stressful living conditions for [the second named applicant] would trigger the seizures.
A further argument advanced in the submissions related to confirmation by [the first named applicant] that she intends to lodge a partner visa application. It is proposed that if the applicants were unsuccessful and had to depart Australia, they would be in the most difficult position where they would have to apply for a visa offshore. That possibly lengthens the time of lodgment and separation time between the [the first named applicant] and [Mr A].
Although the applicants concede that there is no basis for them to meet the criteria as a refugee as defined in the Act, it was advocated that the Tribunal should consider the provisions of the President’s Direction concerning referrals made for ministerial intervention, in particular the provision that:
16.1Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.
For completeness, the entirety of the provisions provided within the President’s Directions are:
16. Referrals for ministerial intervention
16.1 Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.
16.2 The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.
16.3 The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the member’s statement of decision and reasons and may also be set out in the referral letter to the Department.
16.4 If an applicant requests a member to refer a case to the Department and the member decides not to do so, the member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.
16.5 If the AAT has no jurisdiction to conduct a review, the Minister has no power under section 351 or section 417 to intervene. In such circumstances, the case should not be referred to the Department.
Ultimately, the applicants requested that the Tribunal affirm the delegate’s decision not to grant the applicants a protection visa, but requested the Tribunal refer the matter to the Minister.[50] It was submitted that the issues outlined within the submissions were fundamentally relevant in the applicants’ case because what was argued was the existence of strong compassionate circumstances that would result in serious, ongoing irreversible harm and continuing hardship.
[50]Migration Act (1958), s 417.
The Tribunal has carefully considered the comprehensive and lengthy submissions made on behalf of the applicants. It is the Tribunal’s view that notwithstanding the significant details outlining [the first named applicant]’s relationship with [Mr A] and medical condition of both [Mr A] and [the second named applicant], those submissions relate to matters unrelated to the criteria to be considered by the Tribunal with respect to determining whether or not the applicants are refugees as provided within the Act.
The Tribunal notes that notwithstanding the provisions outlined in Part 16.1, there is a discretion afforded to the Tribunal within Part 16.2, but on the basis that the Tribunal considers that there are facts or circumstances which warrant further investigation by the Department. With respect to the applicants’ application for a protection visa, the Tribunal notes that the delegate gave significant consideration to the applicants’ claims and assertions contained within their application when arriving at the decision to refuse them a protection visa. Notwithstanding the applicants applying to the Tribunal for a review of the delegate’s decision, they did not provide any additional evidence, and avail themselves to the hearing process. The only additional material provided were the submissions and documents discussed earlier in these reasons. After giving careful consideration to those features just identified, the Tribunal is of the view that the facts and circumstances of this matter do not warrant further investigation by the Department.
The Tribunal further notes that the Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the Minister’s public interest powers, and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.[51]
[51]Mohammed v Minister for Immigration & Anor [2017] FCCA 2356, [29].
Respectfully, for those reasons explained, the Tribunal declines to make a referral or recommendation as proposed by the applicants as it is a matter for their discretion as to whether they make such a request via the appropriate pathway.
Refugee findings
The Tribunal has carefully considered the applicants’ claims that they have a well-founded fear that if they returned to Vietnam, they will be persecuted because of an imputed political profile, and because they travelled to Australia. They also claim that because of those reasons, upon their return to Vietnam they will be arrested, interrogated and detained and be subjected to the household registration book and be unable to move to another locality within Vietnam for protection.
The Tribunal has also carefully considered the applicants’ claims in respect to the alleged imputed political profile because of the amount of time they have spent in Australia. It is the Tribunal’s findings that there is no basis for this claim, the claim was vague, weak and tenuous and it was not accepted, and the Tribunal rejects it.
The Tribunal also carefully considered the applicants’ claim that they could not be protected within Vietnam as they could not relocate to another locality in Vietnam because of the household registration book. Similarly, to the applicants’ claim in respect to the imputed political profile, the Tribunal’s findings are that there is no basis for their claim of being unable to relocate within Vietnam. The claim was vague, weak and tenuous and it was not accepted, and the Tribunal rejects it.
For completeness, earlier in these reasons the Tribunal has outlined its findings and rejected each of the claims made by the applicants. Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicants’ application to support their case, the Tribunal finds that there is not a real chance that the applicants would suffer serious harm at the hands of the Vietnamese government or the police authorities because of any the alleged claims, or because they sought protection within Australia.
Complementary protection considerations
The Tribunal has considered the applicants’ claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Vietnam, there is a real risk that they will suffer significant harm.
Having already concluded the applicants do not meet the refugee criterion as provided by the Act,[52] the Tribunal has considered the alternative criterion.[53] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there is a real risk that they will suffer significant harm as it is defined in the Act.[54]
[52]Migration Act 1958 (Cth), s 36(2)(a).
[53]Migration Act 1958 (Cth), s 36(2)(aa).
[54]Migration Act 1958 (Cth), s 36(2A).
Having given careful consideration to the applicant’s application, the Tribunal finds that there is no evidence that the applicants have an imputed political profile to the extent that they could be considered by the Vietnamese authorities to be persons of interest, active organisers or dissidents if they returned to Vietnam.
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant will suffer significant harm for any of the reasons they claimed if they return to Vietnam. Helpfully, the courts have discussed the test for ‘real risk’ and determined that 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.[55]
[55]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The Tribunal notes the applicants claim that because they are imputed to have a political profile because [the first named applicant]’s late father was an officer in the ARVN, and they travelled to Australia, if they returned to Vietnam they will be arrested, interrogated, and then detained, although they do not claim that they previously suffered harm within Vietnam. Earlier in these reasons, the Tribunal indicated that the applicants’ claims in this regard have been rejected and the Tribunal does not accept that they will be arrested, detained and interrogated as they claim, and nor does the Tribunal accept that they face a real risk of significant harm in Vietnam for reasons that they claim.
The Tribunal has carefully considered the applicants’ claims that they will be subject to the household registration book and will be unable to relocate to another part of Vietnam for protection. The Tribunal does not accept that the applicants’ claim in this regard, or that their movements within Vietnam will be restricted.
The Tribunal has considered the applicants’ return to Vietnam and notes the information contained within the DFAT report provides that being a failed asylum seeker in Vietnam is not generally stigmatised and there is no known case of returnees being denied citizenship.[56] The DFAT report further provides that it is only occasionally the Vietnamese authorities question returnees from Australia upon their arrival back in Vietnam. That interview process generally takes about two hours and only focuses on obtaining information about whether the applicant had engaged in any illegal activity.[57]
[56]The DFAT Country Information Report for Vietnam dated 11/01/2022, paragraph 5.34.
[57]The DFAT Country Information Report for Vietnam dated 11/01/2022, paragraph 5.31.
When applying the above considerations in respect to the applicants’ case and the material they rely upon, the Tribunal does not accept that the evidence supports any hypotheses of them facing any real risk of significant harm for reasons of their return to Vietnam as failed asylum seekers.
Having considered all the applicants’ claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if they return to Vietnam now or in the reasonably foreseeable future, they will be arbitrarily deprived of life; the death penalty will be carried out on them; they will be subjected to torture or to cruel or inhuman treatment or punishment; nor will they be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds that there is not a real chance they will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that their fear of persecution is not well-founded as required by section 5J of the Act and, therefore, they are not refugees within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, they will be exposed to a real risk of suffering significant harm.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicants do not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicants do not satisfy the criteria in section 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicants a protection visa.
Wayne Pennell
Senior Member
Attachment - Extract from Migration Act 1958 (Cth)
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 4092

4 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing

Date of Travel	[The first named applicant]	[The second named applicant]
[Oct-11]	Arrived	Arrived
[Jan-12]	Departed
[Mar-12]	Arrived
[Dec-13]	Departed	Departed
[Jan-14]	Arrived
[Jan-14]	Arrived
[May-14]	Departed
[May-14]	Arrived
[Apr-15]	Departed
[Apr-15]	Arrived
[Nov-16]	Departed
[Dec-16]	Arrived
[Jan-17]	Departed
[Mar-17]	Departed
[Apr-17]	Arrived
[Apr-17]	Arrived
[Jun-17]	Departed
[Jul-17]	Arrived
[Dec-17]	Departed
[Dec-17]	Departed
[Jan-18]	Arrived
[Mar-18]	Arrived
[Jul-18]	Departed
[Jul-18]	Arrived
[May-19]	Departed
[May-19]	Departed
[Jun-19]	Arrived
[Sep-19]	Arrived
[Oct-19]	Departed
[Oct-19]	Arrived