2010213 (Refugee)

[2024] AATA 3294

2010213 (Refugee) [2024] AATA 3294 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010213

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:19 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 August 2024 at 10:30am

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – family not members of Communist Party – protested against chemical spill – harassed and threatened – lawful departure on own passport – strongly similar claims to another applicant, considered to be contrived – no further information provided or comment on country information – protests no longer occurring or conducted online, high-level activists jailed and applicant a low-level participant – exit control list – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424(1)(b)(i), 424A, 424C(2), 425(3)
Migration Regulations 1994 (Cth), Schedule 2

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Boughey v R (1986) 161 CLR 10
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 27 May 2020.

2. The applicant, who claims to be a citizen of Vietnam, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Vietnam, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act,[3] and therefore she was not a person in respect of whom Australia had protection obligations.[4]

   [2]The applicant’s application was received by the Department on 22 March 2019.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] In filing that application, she did not provide the Tribunal with a copy of the delegate’s Decision Record. The Tribunal emailed the applicant and asked her to provide a copy of the Decision Record,[6] however she never responded to the email and nor did she provide a copy of that document.

   [5]The applicant’s review application was filed with the Tribunal on 18 June 2020.

   [6]Email dispatched to the applicant on 19 June 2020.

4. At a subsequent time, the Tribunal wrote to her pursuant to section 424A of the Act and described to her certain information in the possession of the Tribunal in respect to her Protection visa application and her claims, and she was invited to comment and/or respond on that information. Because she did not respond and/or comment to that information within the prescribed period (by 12 August 2024) and no extension was requested by, or granted to her, the Tribunal decided to proceed to make a decision in respect to her Protection visa application without taking any further steps to obtain her response and/or comments. This is explained in greater detail later in these Reasons.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a Protection visa are set out in the Act[7] 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.[8] 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.

   [7]Migration Act 1958 (Cth), s 36.

   [8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. 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.[9]

   [9]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[10] 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.[11]

   [10]Migration Act1958 (Cth), s 5H(1)(a).

   [11]Migration Act1958 (Cth), s 5H(1)(b).

8. 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.[12] 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.[13]

   [12]Migration Act 1958 (Cth), s 5J(1).

   [13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[14] 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’).[15] 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.[16]

   [14]Migration Act 1958 (Cth), s 36(2)(a).

   [15]Migration Act 1958 (Cth), s 36(2)(aa).

   [16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. 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 them; 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.[17]

    [17]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).

11. Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise 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.[18]

    [18]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

12. The applicant claims to be a citizen of Vietnam and provided a copy of her passport to the Department to authenticate this claim. The Tribunal accepts her identity and, based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[19]

    [19]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[20]

    [20]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No.84 made under the Act,[21] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    [21]Migration Act 1958 (Cth), s 499.

    BACKGROUND TO THE PROCEEDINGS

15. The applicant’s migration history held within the Department’s file shows that she has twice travelled to Australia. The first occasion was in November 2009 when she arrived subject to the conditions of a Tourist visa. She stayed for approximately three months and departed Australia [in] February 2010.

16. After being granted another Tourist visa on 1 September 2019, she arrived for the second time [in] March 2019 when she landed in Melbourne. Two weeks after her arrival, she lodged an application for a Protection visa.[22] At the time of making her application, she nominated that she was living in [City], Queensland.

    [22]On 22 May 2020.

17. After receiving her application, the Department wrote to the applicant on 3 April 2019 and invited her to attend an appointment scheduled on 15 April 2019. The purpose of that appointment was so that she could provide her identifying particulars. In that letter, the Department explained:

    As outlined in your Protection visa application form, all claims, supporting documentation and evidence should have been provided when you lodged your application. You may bring any additional information you would like considered to your appointment for the collection of personal identifiers or provide through ImmiAccount or by mail.

18. Although the applicant attended that appointment, she did not provide the Department with any evidence, material or documents to support the claims she made in her application. Subsequently, an assessment was undertaken of the claims she made and the delegate made a decision on 27 May 2020 to refuse her application. On the same day, the Department dispatched an email to her and enclosed a notification letter along with a copy of the delegate’s Decision Record.

19. On 18 June 2020, the applicant lodged her review application with the Tribunal. Although her review application suggested that she had provided to the Tribunal a copy of the Department’s notification letter and the Decision Record, all that she had provided was the notification letter. On the following day (19 June 2020) the Tribunal dispatched an email to her and enclosed a letter acknowledging that the Tribunal had received her review application, and she was advised that if she wished to provide any material or written arguments for the Tribunal to consider, then she should do so as soon as possible.

20. The Tribunal also asked her if she could provide a copy of the Decision Record as soon as possible. The applicant did not respond to the Tribunal’s email and nor has she ever provided a copy of the Decision Record.

21. Over the next four years, the only communication from the applicant to the Tribunal were two emails in October 2022 where she asked the Tribunal for assistance in getting a Medicare card. Other than that, she has not provided any information, material or evidence to support the claims that she made in her application.

22. At a subsequent time, the Tribunal wrote to the applicant to tell her that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone. She was invited to attend a hearing scheduled on 19 August 2024 in regard to her review application. Also included with that invitation was a ‘Response to hearing invitation’ template and she was asked to return the completed template to the Tribunal within seven days.

23. The Tribunal was also satisfied that it was appropriate to invite her to provide comments or responses in regard to certain information which was available to the Tribunal. Pursuant to section 424A of the Act, she was provided with that invitation (‘section 424A invitation’). At the same time, she was also provided with a copy of the delegate’s Decision Record.

    INVITATION TO COMMENT ON OR RESPOND TO CERTAIN INFORMATION

24. Because the applicant had never provided the Tribunal with a copy of the delegate’s Decision Record, on 29 July 2024 the Tribunal dispatched an email to her nominated email address and enclosed an invitation for her to comment and/or respond to certain information outlined in that invitation.[23] It was explained to her that in conducting the review of the delegate’s decision to refuse her application for a Protection visa, the Tribunal was required by the Act to invite her to comment on or respond to certain information which the Tribunal considers would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    [23]Migration Act 1958 (Cth), s 424A.

25. Just so that she was aware, it was also explained to her that to be granted a Protection visa she must either be recognised as a refugee or be person who was entitled to complimentary protection. It was also explained to her that to be a refugee, she must have a well-founded fear of persecution in Vietnam, and there must be a real chance that she would face serious harm if she returned to Vietnam for the reasons of her race, religion, nationality, membership of a particular social group or political opinion.[24]

    [24]Migration Act 1958 (Cth), s 5J(1)(a).

26. The Tribunal also explained to her that with regard to complimentary protection, there must be substantial grounds for believing that there is a real risk that she will suffer significant harm if she was removed from Australia and returned to Vietnam. The definition of ‘significant harm’ as provided within the Act was explained to her.[25]

    [25]Migration Act 1958 (Cth), s 36(2A).

27. The Tribunal identified to the applicant that in her application for a Protection visa, she was asked to provide reasons why she left Vietnam. Her explanation as it outlined in her application is that if she returned to Vietnam, she would  receive mistreatment, harassment, torture, threats and imprisonment. Her claims went on to describe that her family were not members of the Communist Party of Vietnam (‘CPV’), so they (her family) received unfair treatment in all social interactions. Furthermore, she claimed that she had been threatened and harassed for participating in a protest against the Formosa Company, who she said had illegally dumped toxic waste into waterways.

28. She also claimed that there were no human rights in Vietnam and the government had committed human rights violations against all its citizens. She did seek protection in Vietnam, but was unsuccessful and she tried to move to another part of Vietnam to seek safety however she feared for the safety and health of her parents in that they would be harassed and mistreated, so she remained with them.

29. Specifically, the claims she described within her application were hand written and for the purpose of these Reasons they have since been typed and included below (emphasis in bold text added). A typed copy of her claims was provided to her as an attachment to section 424A invitation.

76

Why did you leave that country/those countries?

Growing up seeing the dictatorship country mistreated our family, life has been so hard for us. Our family was not a communist party member so we received unfair treatment to any social interactions, including jobs, opportunities and social justices. They have no human rights so I decided to leave.  

77

What do you think will happen to you if you return to that country/countries?

If I return to Vietnam, I will receive mistreatment, harassment, torture, threats and imprisonment. I am afraid that may happens.

78

Did you experience harm in that country/those countries? [the applicant ticked Yes]

I am conscious of the fact that social justice is a freedom that people are entitled to. I participated in a protest against a company FORMOSA who had illegally dumped toxic waste into waterways, and as result I was threatened, harassed for my participation.  

79

Did you seek help within the country/those countries after the harm? [the applicant ticked Yes]

Yes – I tried to seek help but was unsuccessful.

80

Did you move, or try to move, to another part of the country/those countries to seek safety? [the applicant ticked Yes]

I tried to move South of country but fearing my family safety and my parents health that they would harass and mistreat them; therefore I decided to stay put.

81

Do you think you will be harmed or mistreated if you return to that country/those countries? [the applicant ticked Yes]

I will be in all sorts of trouble: labour camping, torture, or imprison.

82

Do you think the authorities of that country/those countries can and will protect you if you go back? [the applicant ticked No]

The country has committed many human rights violations (one of the worse in the world) against its citizens. Only Human Rights Watch can help, but none exists in Vietnam.

83

Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed? [the applicant ticked No]

– No support

– Family will be harmed

1. The section 424A invitation went on to explain to the applicant that at the time of lodging her Protection visa application, she had been given the opportunity to provide all of the details of her claims. The application form that she completed informed her that she should provide all of her claims for protection and all documentation or other evidence to support those claims.

2. She was remined that on 5 April 2019 the Department sent her a letter acknowledging her application and she was advised that she could provide additional information relating to her claims and that there were three ways that you could do that. That is, her ImmiAccount, by mail or in person at the time of the collection of her personal identifiers.

3. The Department’s letter also informed her that the decision on her application could be made without another opportunity for her to present any further information. The Tribunal identified to her that at the time of delegate’s decision being made, she had not provided any additional information to the Department.

4. The section 424A invitation further explained to her that on 27 May 2020, a decision was made to refuse her application for a Protection visa. A letter was emailed to her on that day advising her of that decision and a copy of the Decision Record was also provided to her. It was further explained to her that on 18 June 2020 she lodged her review application with the Tribunal.

1. The Tribunal notes that included within her review application was information that showed:

   (a)The applicant’s residential address had not changed since she lodged her application for a Protection visa with the Department. That is, at that time of lodging both her Protection visa application and her review application, she nominated that she was living at [Address, City].

   (b)Her email address ([Email address]), where the Department emailed the delegate’s Decision Record was the same email address she nominated in her review application.

   (c)She nominated in her review application that all correspondence was to be sent to her nominated residential address in [City], or by way of email to the above email address.

   (d)She indicated that she had provided the Tribunal with the Department’s notification about the decision, along with the Decision Record. However, she did not provide the Decision Record.

2. It was identified to the applicant in the section 424A invitation that although she had indicated in her review application that she had provided the Decision Record to the Tribunal, she had not. She was remined that on 19 June 2020 the Tribunal emailed her and acknowledged receiving her review application and asked for her to provide a copy of the Decision Record. It was also identified to her that she did not respond to the Tribunal’s email and nor has she provided the Decision Record as requested.

   Certain information available to the Tribunal

3. Because the Tribunal was in possession of certain information, the Tribunal explained to the applicant that subject to the provisions of the Act, she was invited to comment on or respond to that information.

4. The clear particulars of that information was provided to her, and it was explained that the Tribunal considered that the information would be the reason, or a part of the reason, for the Tribunal affirming the delegate’s decision. The Tribunal also made sure that as far as is reasonably practicable, she understood why that information was relevant to the review, and the consequences of that information being relied on in affirming the delegate’s decision. In doing all of that, the Tribunal invited her to comment on or respond to that certain information.

5. In regard to the information, firstly it was explained to the applicant that the certain information was contained within the country information provided to the Tribunal by way of country information contained within a DFAT report.

   Certain information – Formosa chemical spill – protest

6. It was explained to the applicant that certain information within the DFAT report provided that the Formosa chemical spill which took place in April 2016 was Vietnam’s worst ever environmental disaster. The disaster killed approximately 115 tonnes of fish and devastated, and in many cases ended, the livelihood of fisheries workers. Responsible for the chemical spill was a Taiwan based company who paid USD 500 million to the Vietnamese government by way of compensation to clean up the disaster and to compensate those business and citizens affected. The demonstration which demanded more compensation for the citizens led to the arrests of both street demonstrators and online activists, notably including Catholic clergy and their followers. Relevant to the applicant’s protection claims are that the DFAT understands that Formosa demonstrations are no longer occurring, at least on a large scale and there appears to no longer any political activity or protests directed towards the chemical company.

   Political opinion (actual or imputed)

7. It was outlined to the applicant that other certain information relating to Vietnam was that Vietnam was a one-party state and opposition parties are effectively illegal. Threats to the CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.

8. In respect to advocacy and activism for broader human rights issues, such as democracy and individual freedoms, the DFAT report outlines that most public protests are about practical local issues, such as environmental concerns, development, and transport. Street protests do occur but much of the protests have now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.

9. Activists may be prevented from leaving their homes; and staying away from home overnight requires any person doing that to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea, or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Activists report physical and electronic surveillance, and although sources report activists are free to move around Vietnam (albeit while monitored), they are prevented from going abroad; for example, by having passports refused.

10. The relevance of that information to the applicant’s application was that she claimed to have participated in a protest regarding the Formosa chemical spill. She has not provided any information about that protest, and nor did she claim that her movement in and around Vietnam has been impacted, or that she had an actual or imputed political profile in Vietnam. The Tribunal identified to her that nor had there been any claim by her that since arriving in Australia, she had developed a political profile within Australia.

    Treatment of Returnees

    Exit and entry procedures

11. The section 424A invitation also outlined to the applicant that in respect to her movement out of Vietnam and any return to that country, Article 23 of the Constitution of Vietnam allows Vietnamese citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. 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. Vietnam has an exit control list (ECL) and criminal defendants, those on probation and people subject to civil court orders, may be prevented from leaving Vietnam whereas others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works.

    Conditions for returnees

12. In regards to returnees to Vietnam, the information within the section 424A invitation described that the Vietnamese 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 the part of the returnees. The DFAT was not aware of cases of returnees being denied citizenship and nor was there reports of any cases in which returnees from Australia have been held overnight for this purpose. It was outlined to the applicant that being a failed asylum seeker is not generally stigmatised and migration, particularly internal migration, has been a feature of Vietnamese lives for decades, and it is very common and is even encouraged by the government.

13. It was also pointed out the applicant that the relevance of this information is that it had been identified that she lawfully departed Vietnam twice, with the most recent departure taking place after the protest she claimed that she had been involved in. The Tribunal also identified to her that her application for a Protection visa showed that her passport was issued to her [in] 2017, which is also after the protest took place. There had been no reference within her application, and nor had she provided any information, evidence or material to show that she was a person of interest to the Vietnamese authorities, or that she was in any way prevented from lawfully departing Vietnam.

    Similar claims

14. The section 424A invitation explained to the applicant that attached to the invitation was the claims she outlined in her application. Although the claims with that application were hand written, they had been reproduced and were described within an attachment marked ‘A’ to the invitation.

15. It was further explained to her that the Tribunal was in possession of certain information describing other protection claims lodged in a separate application from refugee applicant. The claims outlined in that other application had a strong similarity to the protection claims she made. It was identified to her what the similarities were between those two applications, that is they were both had been hand written and both sets of claims were identical. It was also identified to her that those other claims had also been reproduced (typed) and were included in an attachment marked ‘B’.

16. She was invited to comment on or respond to the identical nature between her protection claims and the claims expressed in another application and it was explained to her that the distinct similarity between both sets of claims leads the Tribunal to have a concern about the veracity of the claims she relies upon.        

    Hearing invitation and response to section 424A letter

17. The Tribunal’s section 424A invitation also identified to the applicant that on the same day the invitation was being sent to her (29 July 2024), the Tribunal was also sending to her an invitation to attend a hearing in regard to her review application. She was told that the hearing had been scheduled for 19 August 2024 and she was being asked to complete the ‘Response to hearing invitation’ template and return it to the Tribunal. It was particularly identified to her that she should be aware that if she responds to the hearing invitation using the template ‘Response to Hearing Invitation’ form, that response cannot be seen as her also responding to the section 424A written invitation. This is because the template form allows her to notify the Tribunal of any requirements for the hearing, and it cannot be seen as a ‘reply’ or an ‘answer’ directed to the information requested by the Tribunal as part of a section 424A invitation.

    Consequence of information being relied on in affirming the decision under review

18. The section 424A invitation also outlined to the applicant that as at the time of the invitation being sent to her, the Tribunal had not made up its mind about the information, however it was obliged to inform her of the consequences of that certain information being relied upon in affirming the decision that was under review. She was then told that pursuant to section 424(1)(b)(i) of the Migration Act 1958, the consequences of that information being relied upon in affirming the decision under review would be that the Tribunal affirms the decision.

    Time to respond and/or comment

19. It was explained to the applicant in the section 424A invitation that her comments or response should be received by 13 August 2024. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator. If she cannot provide her written comments or response by that date, then she may ask the Tribunal for an extension of time in which to provide the comments or response. She was further told that if she was to make such a request, then the request must be received by the Tribunal by 13 August 2024 and she must state the reason why the extension of time is required.

20. It was also explained to her that if the Tribunal does not receive her comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain her views on the information. If that eventuates, then she will also lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

    No response of comment

21. The notification to the applicant about the schedule hearing and section 424A invitation were sent to her at the email address she provided in her review application. The Tribunal is satisfied (and so finds) that neither of the emails ‘bounced back’, thereby indicating that she had received the emails. Further satisfaction about her receiving the emails arises out of the applicant telephoning the Tribunal on 31 July 2024.

22. During that telephone call, she explained to a Tribunal officer that she had moved from Queensland to Victoria and she wanted to know what she should do in regards to the scheduled hearing. The Tribunal officer told her that she needed to send an email the Tribunal that outlined her change of address as well as some evidence that she lived at her new address. She then asked the Tribunal officer if she could appear at the review hearing via Microsoft Teams, and she was told that she should make a formal request to the Tribunal for her to appear by video link.

23. The Tribunal is satisfied that by the applicant telephoning the Tribunal about the scheduled hearing is confirmation that she had received the emails relating to the hearing and the section 424A invitation..

24. On that same day (31 July 2024), the Tribunal emailed to the applicant the same information which had earlier been outlined to her during her telephone call, and she was asked to reply to the Tribunal’s email as soon as possible. Her response email arrived at the Tribunal on 5 August 2024 where she outlined what the details of her residential address in Victoria. She also told the Tribunal that she wanted to appear at the hearing by a ‘videocall conference’.

25. On 6 August 2024, the Tribunal sent her an email which enclosed a link to a Form MR6 which relates to a change of contact details. She was asked to complete the form and return it to the Tribunal, and once that was done, the Tribunal would then advise her in regard to her request to attend the hearing by video conferencing. She did not respond to the Tribunal’s email, and nor has she returned to the Tribunal the completed Form MR6, and more particularly, she did not respond within the specified timeframe to the Tribunal’s section 424A invitation sent to her on 29 July 2024.

26. On 15 August 2024, the Tribunal dispatched an email to the applicant enclosing a letter advising her that because she had not responded and/or commented to the section 424A invitation within that specified timeframe, pursuant to section 424C(2) of the Act the Tribunal had decided to proceed to make a decision in respect to her application for a Protection visa without taking any further steps to obtain her response or comments; and in accordance with section 425(3) of the Act she had lost her right to appear before the Tribunal at a hearing.

    Credibility of the applicant’s claims

27. Earlier in these Reasons, the Tribunal referred to the claims expressed within the applicant’s application and the strong similarity between those claims and the claims expressed in an entirely different application. Within the section 424A invitation, she was provided with a copy of those other claims asked to explain that similarity between those claims and her own. She did not respond to that invitation.

28. Those other claims relate to entirely different application, and the other applicant is also from Vietnam.[26] When carefully assessing these other claims along with the applicant’s claims, the Tribunal is satisfied (and so finds) that apart from a few minor differences, both claims are identical and contain the same grammatical and spelling errors. The other claims are:

    [26]Tribunal’s Case No. 1925187.

76

Why did you leave that country/those countries?

Growing up seeing the dictatorship country mistreated our family, life has been so hard for us. I am not a member of communist party so I received unfair treatment to any social interactions, including jobs, opportunities and social justice. They have no human rights so I decided to leave.  

77

What do you think will happen to you if you return to that country/countries?

If I return to Vietnam I will receive mistreatment, harassment, torture, threats and imprisonment. I am afraid that may happens.

78

Did you experience harm in that country/those countries? [the applicant ticked Yes]

I am conscious of the fact that social justice is a freedom that people is entitled to. I participated in a protest against a company FORMOSA who had illegally dumped poinsons waste into waterways, and as result I was threatened, harassed for my participation.  

79

Did you seek help within the country/those countries after the harm? [the applicant ticked neither Yes or No]

Yes. I tried to seek help but was unsuccessful.

80

Did you move, or try to move, to another part of the country/those countries to seek safety? [The applicant ticked No]

I tried to move south of country but fearing my parents will be harassed, mistreated, therefore I decided to stay put.

81

Do you think you will be harmed or mistreated if you return to that country/those countries? [the applicant ticked Yes]

I will be in all sorts of trouble: labour camp, torture, or imprison me.

82

Do you think the authorities of that country/those countries can and will protect you if you go back? [the applicant ticked No]

The country has committed many human rights violations against its citizens. Only human rights watch can help, but there’s none in Vietnam.

83

Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed? [the applicant ticked No]

– No support

– Family will be harmed

1. The Tribunal is not inclined to accept that it is a coincidence that the applicant’s claims are identical to the claims made by another applicant, and the Tribunal is satisfied (and so finds) that her claims have been contrived or manufactured with the express purpose of enhancing her application for refugee status in Australia.

   REFUGEE FINDINGS, DISCUSSION AND CONCLUSIONS

2. A review is undertaken in an inquisitorial way and the Tribunal can seek out evidence it requires in order to reach its determination. Even though it is entitled to do so, there is no obligation for the Tribunal to seek out evidence to support the applicant’s claims.[27]

   [27]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

3. It is incumbent upon the Tribunal to conduct a review from the beginning (anew) and the Tribunal is to review and consider the material, information and evidence made available to it afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. In undertaking all of that, the Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[28]

   [28]Migration Act 1958 (Cth), s 420.

4. The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. There is no responsibility placed upon the Tribunal, and nor does it have any obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing her claims.[29] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[30] The mere fact that she claims to have a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason or reasons claimed. Similarly, because she claims that she will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

   [29]Migration Act 1958 (Cth), s 5AAA.

   [30]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.

1. The definition of a refugee as provided within the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution.[31] The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons their race, religion, nationality, membership of a particular social group or political opinion.

   [31]     Migration Act 1958 (Cth), s 5H(1).

2. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm because she claims that she has a well-founded fear of returning to Vietnam because of her political opinion and her involvement in a political protest.

3. The applicant has been given a number of the opportunities by both the Department and the Tribunal to provide all details, information and evidence of her protection claims. The particulars of those opportunities have already been ventilated within these Reasons.

4. When carefully assessing the applicant’s claims, she said that if she returns to Vietnam she will be mistreated, harassed, threatened, tortured and/or imprisoned. She goes on to make a claim that she had been threatened and harassed for participating in a protest relating to large-scale chemical spill caused by the Formosa Company. The Tribunal is satisfied (and so finds) that the applicant has not explained when those threats or harassment took place, and nor has she explained from whom she had received the threats and harassment. Furthermore, she has not explained in her claims who she fears.

5. The Tribunal notes that she outlines within her claims that her family were not members of the CPV, and because of they were not members, they were treated unfairly in most social interactions. Notwithstanding that claim in regard to her family, she does not claim that she was treated unfairly by the CPV because she was not a member of the CPV. In regard to her relocation within Vietnam for her own protection or safety, she claimed that she tried to move to the south of the country but did not move because she had fears in regard to the health and safety of her parents, therefore the Tribunal is satisfied that by remaining with her parents this shows that she does not have a fear of being harmed because of her actual of imputed political opinion.

6. Turning to the applicant’s claim that she had participated in a protest in regard to the Formosa chemical spill, in respect to any action taken by the Vietnamese government against the people involved in the Formosa protest, the DFAT report explained that since late 2017, there had been a significant rise in instances in which authorities arrested and charged activists under the national security provisions. Many of those arrested received lengthy sentences after highly publicised trials, with some of the activist connected to the Formosa protest.[32] Those people imprisoned were high profile activists, a description far removed from that which applies to the applicant who described that her role was to participate in the protest. The applicant does not claim that she was anyway interacted with the Vietnamese authorities, or was arrested or prosecuted by the authorities for her participation in the any protest.

   [32]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 18.

7. The applicant has been provided with a number of opportunities by both the Department and the Tribunal to provide evidence to support her claims that she participated in the protest. She has declined every opportunity to do so, and there is nothing more than a comment within her application where she described that she was a mere participant or attendee at the protest. She does not claim that she was anyway involved in the organisation of the protest, or that she interacted with the authorities, or that she is a person of interest because of the protest.

8. When considering the country information about the chemical spill, the Tribunal is satisfied that the Formosa chemical spill did occur, and that there were protests associated with that event. However, when carefully considering the strong similarities between the applicant’s claims to the claims expressed within a different application for a Protection visa, the Tribunal does not accept that the applicant attended the protest as she claimed and her claims in that regard are rejected. Therefore, the Tribunal is satisfied (and so finds) that she does not have a political profile, imputed or otherwise, that makes her a person of interest to the Vietnamese authorities.

9. Further to this, even if she had attended the protest as her claims suggest, when carefully considering the information provided within the DAFT report, it is clear that although activists, or persons of interests, are free to move around Vietnam (albeit while monitored), they are prevented from going abroad; for example, by having their passport refused.[33] The Tribunal notes that within her Protection visa application she described that she had been issued with a Vietnamese passport [in] 2017,[34] and when asked to explain in her application how she obtained her current travel document, she said that she obtained the document from ‘Vietnam Immigration’.[35] When assessing that information, the Tribunal does not accept that if she was a person of interest to the Vietnamese authorities that she would have been issued with a passport or travel document.   

   [33]The DFAT Country Information Report, Vietnam, dated 11 January 2022, pages 18 – 19, paragraph 3.56.

   [34]Applicant’s application, Part C, page 20, question 47.

   [35]Applicant’s application, Part C, page 21, question 52.

10. Further to this, the Vietnamese government imposes limits on entry and exit for political activists and government critics. This is undertaken through Vietnam’s exit control list which controls the movement across its borders of people such as persons of interest, criminals and people subject to court orders. Those people subject to the exit control list may be prevented from leaving Vietnam.[36] 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.[37] The Tribunal is satisfied that this does not apply to her because she lawfully departed Vietnam and travelled to Australia on a Vietnam Airlines flight. Therefore,  the Tribunal is satisfied (and so finds) that had she been a person of interest to the authorities, she would have been prevented from leaving Vietnam.

    [36]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 32, paragraph 5.26.

    [37]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 32, paragraph 5.25.

11. In respect to the applicant being a returnee failed asylum seeker to Vietnam, the DFAT report provides that although the Vietnamese authorities may 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 involvement on the returnee’s part.

12. The DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[38] When carefully assessing that country information, and weighing that information against the applicant’s claims, the Tribunal is satisfied (and so finds) that there is no information before the Tribunal that she has engaged in any illegal activity in Australia. Further to this, the DFAT report provides that being a failed asylum seeker is not generally stigmatised by the Vietnamese authorities and the DFAT is not aware of cases of returnees being denied citizenship.[39]

    [38]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 33, paragraph 5.31.

    [39]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 33, paragraph 5.34.

13. When carefully considering the applicant’s claims, the only material available for the Tribunal’s consideration is her application, along with the available country information. After careful consideration of all that material, the Tribunal is not satisfied that the claims relied upon by the applicant amount to her having a well-founded fear of persecution if she returned to Vietnam because of reasons of her race, religion, nationality or membership of a particular social group as required by section 5J(1)(a) of the Act.

14. In respect to her claim regarding an actual or imputed political opinion because she participated at a Formosa protest, the Tribunal is satisfied (and so finds) that the evidence in this matter does not support any proposition that she has an actual or imputed public political profile within Australia or Vietnam, and nor does it support any claim that she is a person of interest to the Vietnamese authorities which would cause her to have a well-founded fear of harm if she returned  to Vietnam.

15. Therefore the Tribunal is not satisfied that she is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that she is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

16. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[40] the Tribunal has considered the alternative criterion[41] and undertaken an assessment as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that she will suffer significant harm as it is defined in the Act.[42]

    [40]Migration Act 1958 (Cth), s 36(2)(a).

    [41]Migration Act 1958 (Cth), s 36(2)(aa).

    [42]Migration Act 1958 (Cth), s 36(2A).

17. Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of their life; the death penalty will be carried out on them; they would be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.

18. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that she will suffer significant harm if returned to Vietnam. The Courts have adopted the principle that test for ‘real risk’ imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[43]

    [43]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

19. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote, chance of persecution occurring.[44] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[45] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[46]

    [44]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

    [45]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

    [46]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

20. When assessing the claims relied upon by the applicant in regard to complementary protection, her claims remain unchanged from those discussed above in regard to section 5J(1)(a) of the Act. Notwithstanding that she thought that the Vietnamese authorities could not protect her if she returned, she provided no evidence to substantiate that claim.

21. The Tribunal has also given very careful consideration to the proposition that if she returned to Vietnam, she would face a real risk of suffering significant harm as defined in section 36(2A) of the Act. When giving careful consideration to those claims, and having considered all of the applicant’s claims, individually and cumulatively, along with the evidence and the country information, the Tribunal does not accept that if she returns to Vietnam now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, or she will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will she be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

22. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion if she returned to Vietnam. Therefore, the Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and she is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

23. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Vietnam she will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

25. Having concluded that she does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion of complementary protection and is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

26. There is no suggestion that the applicant satisfies section 36(2) of the Act 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, she does not satisfy any of the criteria in section 36(2) of the Act.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne Pennell
    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.

    …