2010818 (Refugee)

2010818 (Refugee) [2022] AATA 5169 (8 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Hoang
CASE NUMBER: 2010818

COUNTRY OF REFERENCE: Vietnam
MEMBER:Wayne Pennell
DATE:8 December 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 December 2022 at 8:12am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – underground political party – anti-government protests – arrests – fear of torture – Formosa chemical spill protests – passport renewal – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (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

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 applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]The delegate’s decision was provided to the applicant on 26/06/2020.
The applicant who claims to be a citizen of Vietnam, applied for a protection visa.[2] The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person 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 applicant being removed to Vietnam, there was a real risk he would suffer significant harm and he was not a person 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 10/09/2019.
[3]The delegate’s refusal was made on 26/06/202020.
[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 applicant filed an 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 applicant advising him 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]
[7]The applicants’ application was filed on 29/06/2020.
[8]The Tribunal advised the applicants on 23/09/2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9]He subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present arguments.
[9]The Tribunal’s review hearing was listed for 06/12/2022.
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.[10] 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.
[10]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.[11]
[11]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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]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.[14] 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.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]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,[16] 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’).[17] 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.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]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.[19]
[19]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).
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.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Vietnam and he provided a copy of his passport to authenticate this claim. The applicant’s passport had been issued in Vietnam and the Tribunal accepts the applicant’s identity.[21] Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]Passport issued [in 2018].
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
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 the applicant is not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[24] 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.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces 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.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person 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.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]
[26]Migration Act 1958 (Cth), s 5AAA.
[27]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.
Applicant’s background
The applicant was born in Vietnam. He originates from the regional area of Hoang Mai located within the Nghe Anh Province which is situated on the east coast of Vietnam. He [has specified siblings]. A majority of his family still live in Vietnam, including his parents and [specified siblings]. He has another [sister] living in Australia and she is an Australian citizen.
The applicant married his wife in 2009 and they have two children aged [respective ages]. His wife and children live in Vietnam. He told the Tribunal that he speaks to his wife and children twice a week on the phone, and he telephones his parents each fortnight. Although his wife knows about his involvement the underground organisation and the protests he attended, as far as he is aware, his parents are not aware of his involvement.
He attended the Hanoi General University and graduated in [year] with a degree in [subject]. After leaving university he worked for a [business 1] company for about a year before returning to his home town where he started a seafood business. He operated that business for about a year before passing the management and control of the business to his wife. He then gained employment with a [business 2] company involved in [specified business areas]. He worked for that company until he came to Australia in September 2019.
APPLICANT’S CLAIMS
In explaining his reasons for leaving Vietnam and traveling to Australia, the applicant claimed that after he had twice previously visited his sister and family in Australia, those trips provided him experiences of what he described as a country of freedom and democracy.
As a member of the young educated generation in Vietnam, he expects the Vietnamese government to allow the people of Vietnam to breath freedom as they are entitled to in a democratic political system. In contradiction, the Vietnamese citizens are hopelessly under the control and practices of totalitarianism by the communist government of Vietnam. It made him very angry to see the Vietnamese communist leaders kowtowing to the Chinese leaders; and the Vietnamese communist leaders took bribes from the Chinese leaders to allow them (the Chinese) more power in Vietnam and the sovereignty of Vietnam has been surrendered to China.
The aim of the underground organisation he joined was to raise awareness of the importance of the freedom, democracy and the value of human rights of the Vietnamese people and to promote a philosophy of anti-dictatorship within Vietnam; along with highlighting the abuse and suppression of the Vietnamese people by the communist cadres of Vietnam. The underground organisation was made up of 30 people who protested against the communist Vietnamese government and fundraised money. For safety reasons, the identity of the organisation’s leaders was not disclosed to him, and he only attended the ‘events’ as a supporter.[28]
[28]Applicant’s statutory declaration dated 01/12/2022, page 2, paragraph 13.
The ‘events’ the applicant referred to were two specific protests which he claimed to have participated in. The first protest took place in May 2014 outside the Chinese Embassy in Hanoi. This was a protest against the Chinese invasion of Vietnam’s water territory, particularly bringing the Chinese oil rig from the South China Sea to an area near Spratly Island.[29] He claimed that members of the underground organisation were arrested and detained because of their involvement in the organisation of this protest.[30] The second protest took place outside [Location 1] in Ha Tinh Province sometime in the period of late 2016 to early 2017.[31]
[29]Applicant’s statutory declaration dated 01/12/2022, page 2, paragraph 14.
[30]Applicant’s application filed with the Department on 10/09/2019, page 25.
[31]Applicant’s statutory declaration dated 01/12/2022, page 3, paragraph 17; Applicant’s application filed with the Department on 10/09/2019, page 25.
Notwithstanding those claims made, the applicant outlined that he had not suffered any harm in Vietnam because of his political activism. When explaining why he has not relocated within Vietnam to protect himself, he claimed that he has not moved, or tried to move to another part of Vietnam to seek safety because the communist Vietnamese government uses the household registration book to strictly control the movement of its citizens. He added that those people on a blacklist are not permitted to move out their own current residential area and this allows the government to keep them under surveillance, such as having the local police follow and monitor them each day. He claimed that he was on a blacklist and could not relocate.
In explaining what would happen to him if he returned to Vietnam, the applicant feared he would be harmed and mistreated. He described that the Vietnamese government could not or would not protect him because there is no government or private agency available in Vietnam to advocate on behalf of the victims or the blacklisted elements of society. He claimed that the harm and mistreatment he would likely receive is possibly torture by the local police and he would be denied the entitlement of any social benefit which other citizens receive. He said that to get out of the reach of the Vietnamese police, he obtained a visitor visa and travelled to Australia.
APPLICANT’S EVIDENCE
2014 protest – Chinese Embassy in Hanoi
The applicant claimed in his original application for a protection visa that because he was involved with an underground organisation and he had a public political profile, he fears that if he returned to Vietnam he will be arrested, detained and possibly tortured by the local police.[32]
[32]Applicant’s application filed with the Department on 10/09/2019, page 26.
The applicant’s claim at the review hearing was that in May 2014, members of the underground organisation were arrested and detained because of their involvement in the organisation of a protest outside the Chinese Embassy in Hanoi.[33] The Tribunal notes that in his original application, no reference was made to this protest, instead he claimed:
Some of our members in the underground group were arrested and detained as they were organising demonstration against the powerful invasion of Chinese ships to the Greenbank Oil Rig of the Spratly Island which belongs to within economic zone of Vietnam.[34]
[33]Applicant’s statutory declaration dated 01/12/2022, page 2, paragraph 14.
[34]Applicant’s application filed with the Department on 10/09/2019, page 25.
Nor did the applicant claim he was present when the members of the underground organisation were arrested for organising the protest described above. The Tribunal also notes that in his oral testimony at the review hearing, and in the evidence within his statutory declaration, he claimed that he was involved in this protest, albeit his role was limited to being a supporter. In his statutory declaration he said:
In May 2014, I attended a protest against the Chinese invasion of Vietnam’s water territory particularly, the bringing Chinese Oil Rig 981 to South China Sea near the Spratly Island. From Nghe An at [time], I travelled by bus for approximately 2-3 hours to Ha Noi arriving at [time]. I was allowed to sleep on the bus until the morning, and hired an uber bike to Chinese Embassy in Ha Noi at 8am. There were about 1000 Vietnamese people present to protest and chant against the China’s power invasion and corrupted relationship with Vietnamese officials given the Oil rig in the South China Sea.[35]
[35]Applicant’s statutory declaration dated 01/12/2022, page 2, paragraph 14.
At the review hearing, the applicant confirmed that in May 2014 he travelled to Hanoi by bus to participate in the protest. He confirmed the details of the events leading up to protest as they are contained in the above passage. He claimed that one of the members of his organisation who helped organise this protest was chased by the police, but this person managed to escape to [Country 1], and he was later accepted as a refugee in [Country 2]. When asked about this person by the Tribunal, he was unable to name him. He simply knew this person by his code name of [Name 1]. The applicant’s answers to questions about this person were vague; and it was evident that he had no knowledge of who this person was except for the scant details about a supposedly code name for him, and that this person was now a refugee in [Country 2]. The Tribunal is satisfied the responses given by the applicant revealed that he had very little knowledge of this person other than his supposed code name, and if the applicant did indeed attend this protest as he claimed, then he (the applicant) had no involvement in the organisation of the protest. His involvement or role was simply limited to what he described in his statutory declaration as a ‘supporter’.[36]
[36]Applicant’s statutory declaration dated 01/12/2022, page 2, paragraph 13.

Returning to the applicant’s evidence about the unknown person referred to as [Name 1], the Tribunal does not accept his evidence about this person as the Tribunal finds his evidence confusing, vague, weak and tenuous and he contradicted himself when explaining this person’s involvement in the organisation of this protest. In his original application, he claimed that it was after the Formosa protest in 2016 when this person escaped to [Country 1] and then to [Country 2].[37] At the review hearing, he told the Tribunal that this person’s escape to [Country 1] and then to [Country 2] took place two years earlier after the Chinese Embassy protest in 2014.
[37]Applicant’s application filed with the Department on 10/09/2019, page 25.
In discussions with the Tribunal about a paragraph outlined in his statutory declaration where he described his movements leading up to the Chinese Embassy protest, the applicant reaffirmed the contents of that paragraph as outlined above at paragraph [29] as being accurate and true. Within that paragraph he explained that after arriving at the bus terminal in Hanoi, he was allowed to sleep on the bus until the morning. In the morning of the protest, he hired an Uber bike to travel from the bus terminal to the protest at the Chinese Embassy.
When asked to explain how he specifically recalled that it was an Uber bike that he hired to get to the Chinese Embassy that day, the applicant said that located outside the bus terminal was a long row of Uber bikes. He walked up to the row of Uber bikes and hired an Uber bike. When asked how he knew it was specifically an Uber bike, he told the Tribunal that he remembered that the rider was wearing the uniform belonging to an Uber rider. The Tribunal challenged the applicant on the veracity of this evidence and outlined to him that the Tribunal was in possession of information that showed that Uber bikes did not start operating in Hanoi until April 2016, which was almost two years after he claimed to have used an Uber bike to attend the protest.[38] The applicant then requested a short break to the hearing.
[38]Migration Act 1958 (Cth), s 424AA; Mobile World Live, UberMoto launches in Vietnam, kicks off price war, Joseph Waring, 27 April 2016, accessed 06/12/2022.
When the hearing recommenced, the applicant told the Tribunal that it was not an Uber bike he rode on, it was actually another company called [name]. He said he thought that if he said it was an Uber bike, the Tribunal member might be able to understand more easily what he was talking about when he described his mode of transport. The Tribunal notes that he did not explain why he specifically told the Tribunal that the rider was wearing an Uber uniform.
The Tribunal does not accept his explanation as to why his evidence changed; and the Tribunal finds that he could not have ridden on an Uber bike at the time he said he did because the company did not exist in Hanoi until two years later. The Tribunal further finds the applicant has not provided any probative or tangible evidence to support his claim that he attended that protest, and the truthfulness of his evidence about him attending the protest is questionable.
In conclusion, the claim made by the applicant in his statutory declaration about his attendance at this protest is in the Tribunal’s view, him presenting new evidence that was not presented before the primary decision was made. The evidence now raised by the applicant was within his knowledge prior to him making his application for a protection visa, including when he was invited by the delegate that he could provide additional evidence prior to the primary decision being made.[39] The only disclosure of this evidence occurred when the applicant’s statutory declaration was produced to the Tribunal in the week prior to the review hearing.
[39]Invited on 13/09/2019.
When carefully assessing the new evidence, the Tribunal is mindful that the Act provides that because the applicant has raised new evidence that was not raised before or presented to the delegate prior to the primary decision being made, then the circumstances require the Tribunal to draw an adverse inference about the new evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the evidence was not relied upon before the delegate’s primary decision was made.[40]
[40]Migration Act 1958 (Cth), s 423A.
When asked by the Tribunal for an explanation why he did not disclose the evidence about the 2014 Chinese Embassy protest at an earlier time, the applicant said that the evidence was not disclosed in his original protection visa application because he did not think this protest was as an important protest when compared to the protest which took place outside [Location 1]. The Tribunal does not accept that his explanation is reasonable under the circumstances, and an adverse inference is drawn as to the veracity of the evidence regarding the protest outside the Chinese Embassy at Hanoi in May 2014 and the evidence is rejected.
2016 protest - Formosa
In his original application, the applicant claimed that because the Formosa Steel Company (Formosa) released a chemical spill into the sea, he joined the underground organisation to participate in demonstrations against Formosa.[41] In his evidence, the applicant claimed the protest took place outside [Location 1] in Ha Tinh Province.[42] Although the applicant could not accurately pinpoint an exact date of this protest, he indicated that it happened either at the end of 2016, around December 2016; or sometime in early 2017, possibly February 2017.
[41]Applicant’s application filed with the Department on 10/09/2019, page 25.
[42]Applicant’s statutory declaration dated 01/12/2022, page 3, paragraph 17; Applicant’s application filed with the Department on 10/09/2019, page 25.
The applicant outlined that in April 2016, an incident occurred where Formosa, being a Chinese owned company, disposed of dangerous toxins straight into the sea on the east coast of Vietnam which polluted the environment and damaged the livelihood of hundreds of fishermen and people living by the coastal waters. He claimed that he and his family were fishermen; selling and producing many sea products such as [named products]. However, due to the dumping of the toxin and the pollution to the sea, he and his family could not sell their products. Like many others, he was deeply affected by this as the media broadcasts about the spill resulted in making people being scared of purchasing ocean based products. Apart from making that claim, the applicant has not provided any other tangible or probative evidence to support his claim regarding his livelihood being affected.
The applicant said that following the Formosa chemical spill, the Vietnamese government failed to take action to protect the sea or the Vietnamese people by ensuring appropriate compensation for the victims of the chemical spill. Instead, the Vietnamese government continued to support Formosa which he considered was potentially due to Formosa bribing the government. The applicant said that the communist Vietnamese authorities also brutally suppressed the citizens in the protest, and he saw protesters being beaten and arrested.[43]
[43]Applicant’s statutory declaration dated 01/12/2022, page 3, paragraph 18.
The applicant claimed that he heard online of a protest held by the underground organisation in Ha Tinh. To demonstrate his frustration and anger against Formosa and the lack of government intervention, he travelled [by bus] and attended the protest. He said that there were thousands of people at the protest who had banners and were chanting for fair compensation and for Formosa to stop the toxic release and he was there for four hours.[44]
[44]Applicant’s statutory declaration dated 01/12/2022, page 3, paragraph 17.
The applicant claimed the Formosa protest highlighted the communist Vietnamese government’s violations of human rights and democracy across the world, with many political activists being arrested and facing heavy sentences for demanding their environmental rights against the government and attending the protest. The applicant is afraid the Vietnamese government will become aware of his participation in the protest, and therefore he will be at risk of persecution and imprisonment.[45]
[45]Applicant’s statutory declaration dated 01/12/2022, page 3, paragraph 19.
In respect to any action taken by the Vietnamese government against the people involved in the Formosa protest, the country information contained within the DFAT report shows that since late 2017, there has been a significant rise in instances in which authorities have 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.[46] The country information indicates that those people imprisoned were high profile activists, a description far removed from that which applies to the applicant who is a self-described ‘supporter’ of the protest.
[46]The DFAT Country Information Report, Vietnam, dated 11/01/2022, paragraph 3.53.
The country information contained within the DFAT report on Vietnam provides that the Formosa chemical spill in 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. Formosa paid US$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 demanding more compensation led to arrests of both street demonstrators and online activists, notably including Catholic clergy and their followers. The DFAT understands that Formosa demonstrations are no longer occurring, at least on a large scale. Other sources told the DFAT that some citizens remain dissatisfied and have launched legal appeals against the compensation paid, which they considered to be inadequate.[47]
[47]The DFAT Country Information Report, Vietnam, dated 11/01/2022.
Having regard to the applicant’s evidence, and the corroborative evidence contained within the DFAT report about the Formosa chemical spill, the Tribunal accepts the applicant’s claim in regard to the chemical spill occurring and the protest and the arrests which took place.
When carefully assessing the claim made by the applicant in respect to his involvement in the Formosa protest, the Tribunal is inclined to accept that he attended the protest, albeit that there is no probative or tangible evidence to suggest that his involvement was anything else other than as a supporter.
Applicant’s submissions – Chinese Embassy and Formosa protests
In submissions provided to the Tribunal, it was argued that the applicant participated in various protests in Vietnam related to the Formosa incident and Oil Rig dispute in the Spratly Island against the Vietnamese government’s response to these incidents. It was also submitted that the applicant also criticised the Vietnamese government of corruption and its submissive reactions to Chinese companies and authorities in which the Vietnamese officials’ interest were protected and the rights of its citizens and their livelihood were totally ignored.
The Tribunal finds that apart from the applicant’s claim that he attended the protests outside the Chinese Embassy in Hanoi and [Location 1] in Ha Tinh Province, there is no claim or other evidence of him being involved in any other protests in Vietnam. As already outlined in these reasons, although the Tribunal accepts he attended the Formosa protest, it is not accepted that he attended the protest outside the Chinese Embassy in Hanoi. Therefore, the Tribunal rejects the submission that he participated in ‘various’ protests in Vietnam.
Internal relocation – blacklist – household registration book – failed returnee refugee
The Tribunal has carefully considered the applicant’s claims that he had been blacklisted and would be restricted from relocating to another area within Vietnam. 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 their passport refused.[48] 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.[49] 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.[50]
[48]The DFAT Country Information Report, Vietnam, dated 11/01/2022, pages 18 – 19, paragraph 3.56.
[49]The DFAT Country Information Report, Vietnam, dated 11/01/2022, page 32, paragraph 5.26.
[50]The DFAT Country Information Report, Vietnam, dated 11/01/2022, page 32, paragraph 5.25.
Within the generic application for a protection visa, there is a series of questions posed to the applicant, including the details of why he would be unable to relocate within Vietnam to an area where he could be protected; and what he thought would happen to him if he returned to Vietnam. He claimed that he cannot relocate to another area of Vietnam because in 2017 he was told that he had been placed on a black list. When delving into his knowledge as to how he discovered this, the applicant said that someone told him that he was on the blacklist, and the person who informed him had in turn been told by someone else.
In his statutory declaration, the applicant said:
It is not possible to relocate to a different area of Vietnam, as I will have to ask permission from my listed residence authorities to move and the authority must also recommend me to live in a different town/district or province. The destination authority must review my identity and history records before permitting me to reside in their location. I believe both authorities will not allow me to move to a different area to live as it will be more easily controlled in my hometown and potentially less hassle for them.
Political activists like me will not be permitted to move out of my previous residential address as they would need to monitor my daily activities to surveillance that I am not involved in other protests against the government or participating in activities considered ‘illegal’ by the communist government.[51]
[51]Applicant’s statutory declaration dated 01/12/2022, page 5, paragraphs 31 – 32.
The Tribunal does not accept his evidence as outlined above and does not accept that he is a political activist, for if he were categorised as such by the Vietnamese authorities, then he has not been able to explain why he was issued with a new passport [in] 2018 by the Vietnamese Department of Immigration; and in 2019 he enjoyed an uninhibited and lawful departure from Vietnam for his trip to Australia. The Tribunal does not accept that he is a political activist; or he is on a blacklist; or he has a public political profile.
In regard to whether there was a risk to him if he returned to Vietnam, the applicant accepted that he had not experienced harm in the past within Vietnam, however because he was on a blacklist, he claimed that he would be arrested and detained.[52] He claimed the Vietnamese authorities have put him under suspicion because although he has never been arrested, detained or questioned by the police because he attended any of the protests outlined in these reasons, he was aware that the police were interested in him. He claimed that prior to the 2014 Chinese Embassy protest, there was no sign of any police presence around his house.
[52]Applicant’s application filed with the Department on 10/09/2019, page 25.
However, following that protest, he noticed an increase in the police presence around his home. He was able to recognise the police as plain clothes officers from the local police station. When asked by the Tribunal if these police officers ever spoke to him, he said that they had not, and nor had they visited his home for any reason. Notwithstanding that, he had a feeling the police were interested in him because he felt that they were following him. When carefully considering the applicant’s claim that he was under surveillance, the tribunal finds that his claim is vague, weak and tenuous and it is not accepted.
In respect to his family in Vietnam, there is no evidence that his wife or any other members of his family have been questioned about his involvement with the underground organisation or his involvement in the protests; and there is no evidence that his wife or family members are aware he was blacklisted as he claimed. Because of the lack of evidence and the vagueness of the claim, the Tribunal rejects the claims that he is the subject of a blacklist, and he cannot relocate to another part of Vietnam for protection.
When giving careful consideration to the information provided by the applicant to substantiate his claims, the Tribunal finds he has not provided any evidence, information or examples which supports the proposition that he had a well-founded fear that if he returned to Vietnam he will be arrested, interrogated or detained and prevented from relocating within Vietnam because he is on a blacklist. Nor has he provided any evidence, information or examples which supports his suggestion that he possesses any type of public political profile, imputed or otherwise, within Vietnam and or Australia. On the evidence before it, the Tribunal does not accept that there is any basis for the applicant to have a fear in regard to his claims.
In respect to the applicant 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 involvement on the returnee’s part. The DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[53]
[53]The DFAT Country Information Report, Vietnam, dated 11/01/2022, page 33, paragraph 5.31.
In respect to the applicant’s 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 by the Vietnamese authorities and the DFAT is not aware of cases of returnees being denied citizenship.[54]
[54]The DFAT Country Information Report, Vietnam, dated 11/01/2022, page 33, paragraph 5.34.
Having carefully considered the applicant’s claim in regard to him being a person of interest because of any imputed political position; being blacklisted; and being subjected to the household registration book, along with assessing all the information provided by the applicant and the country information within the DFAT report; the Tribunal finds that the evidence in this matter does not support his hypothesis that he possesses an imputed public political profile within Australia or Vietnam, or that he is a person of interest to the Vietnamese authorities which restricts his movements or relocation within Vietnam. The Tribunal also finds that his claims are vague, weak and tenuous and the claims are rejected.

In conclusion, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm. The Tribunal finds that he is not a person in respect to whom Australia has protection obligations as defined in the Act.[55]
[55]Migration Act 1958 (Cth), s 36(2).
Actual or imputed political opinion
Earlier in these reasons, it was outlined that the applicant claims that he participated in anti-government political protests and involved himself in the activities of an underground organisation. Although he claimed participation in two protests, each being separated by a time span of two years; the Tribunal found that the applicant did not attend the 2014 protest outside the Chinese Embassy in Hanoi but accepts that attended the Formosa protest in 2016.
When carefully considering the evidence, the Tribunal is satisfied that at best, the applicant’s own evidence shows that his involvement in the underground organisation was very minimal; he was not privy to the organisation or arranging of any political activities; he did not hold a position of influence within the organisation; and his attendance at a protest was limited to being a supporter.
He told the Tribunal that when he lived in Vietnam, he had never been arrested or detained for political activism. Nor had he been interviewed, questioned or even generally spoken to by the police about his claimed political activism. This is despite his claim that he noticed the police presence around his home increased after he attended one protest and he felt that the police were interested in him; and he had a feeling he was under surveillance by plain clothes police officers.
The applicant also claimed that because of his political activism, he was placed on a blacklist by the police in 2017. The Tribunal does not accept this claim because he obtained a passport from the Vietnamese authorities the following year and was able to lawfully depart Vietnam and travel to Australia.
Already outlined in these reasons, the country information contained within DFAT report outlines 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.[56] 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.[57]
[56]The DFAT Country Information Report, Vietnam, dated 11/01/2022, pages 18 – 19, paragraph 3.56.
[57]The DFAT Country Information Report, Vietnam, dated 11/01/2022, page 32, paragraph 5.26.
When considering the applicant’s claims when weighed against the country information and the evidence before the Tribunal, the Tribunal rejects his claim that he has an actual or imputed political profile in Vietnam.
In respect to the applicant’s claim that because of his political activities in Australia, he has an actual or imputed political profile. The Tribunal notes that contained within the submissions made by the applicant’s representative is a suggestion that he attended various protests in Australia to raise awareness and condemn the Vietnamese government’s action against human rights issues in Vietnam. These protests were held by [Section 1] of [Community Group 1] whose members are mostly soldiers and their descendants who have served the previous government of the Republic of South Vietnam. This group denies the validity of the current national flag of Vietnam and only recognises the previous national flag of the Republic of South Vietnam. They honour the Republic of Vietnam flag in all of their activities to distinguish the Vietnamese in Australia who support the current government and those supporting the previous Vietnamese government. [Community Group 1] are perceived as a group that opposes the Vietnamese government.[58]
[58]Applicant’s submissions filed with the Tribunal on 01/12/2022.
Notwithstanding the submissions suggest that the applicant attended ‘various protests in Australia’, the applicant told the Tribunal that he was not a member of [Section 1] of [Community Group 1], and since arriving in Australia in 2019, his only participation with the Vietnamese community was to attend two events during that time, being the 2020 and 2022 rallies to commemorate the fall of South Vietnam in 1975. He did not attend the 2021 rally because of the COVID restrictions.
The applicant also claimed that in Australia, he will continue to use his voice and the platform that he has to criticise and express his political opinions against the Vietnamese government for the people who cannot express themselves in fear of persecution.[59] The Tribunal notes that this is confirmed in his statutory declaration where he deposed that:
In April 2020, I was introduced to [Community Group 1] and was invited to attend the ‘Fall of Saigon April 30^th 1975’ event in [Town 1]. During this event, I held banners that criticised the Vietnamese authorities and demanded the recognition for human rights and democracy from the government to ensure the citizens have a voice and better life. I also called for the community to donate money to support prisoners of conscience who have been unjustly sentenced to jail for criticising the government on their corruption, abuse of power, environmental violations and many more.
I had also attended the ‘Fall of Saigon’, April 30th event again in 2022, organised by [Community Group 1] after a long-period of COVID-19.
I was taken photos with the yellow Republic of Vietnam Flag during these events which are considered ‘anti-government’ acts in support of the previous government. These photos and my involvement are widely shared on social media as these events are live-streamed and heavily monitored by the Vietnamese authorities. I believe the Vietnamese government are aware of my political involvement in Australia that criticise and illegitimatise their power.[60]
[59]Applicant’s statutory declaration dated 01/12/2022, page 4, paragraph 23.
[60]Applicant’s statutory declaration dated 01/12/2022, page 4, paragraphs 24 – 26.
In respect to his well-founded fear of returning to Vietnam, the applicant claimed that given his participation in protests within Australia, it is his belief that if he returned to Vietnam, he will be detained and arrested. He is also fearful the Vietnamese police will abuse him psychologically and physically in an attempt to silence him and he could potentially die without his family knowing.[61]
[61]Applicant’s statutory declaration dated 01/12/2022, page 4, paragraph 28.
When carefully considering the applicant’s evidence about his involvement with [Community Group 1], the Tribunal notes that no letter of support or statement from any executive member or other member of [Section 1] of [Community Group 1] was provided to the Tribunal to validate or support his claims that he participated in any rally or any other activity involving [this group]. Nor has the applicant relied upon any witness to provide evidence to the Tribunal to validate his claim.
The Tribunal also notes that in his statutory declaration, he states that photographs were taken of him at holding the yellow Republic of Vietnam flag during those rallies, yet the Tribunal observes that there was a distinct absence of any no photographs, or other probative or tangible evidence exhibited by the applicant to substantiate and support his claim. When considering those observations, the Tribunal is satisfied that if the applicant did indeed involve himself in the annual commemorative event relating to the fall of the Republic of South Vietnam, then his involvement has been very limited. In that regard, the Tribunal rejects that he has an active public political profile as political dissident within Australia.
Refugee findings
The applicant claims that because he participated in political activities and protested against the communist Vietnamese government, he now has an actual or imputed political profile in both Vietnam and Australia. He claimed that because of his public political profile in Vietnam, he was put under surveillance by the Vietnamese police and placed on a blacklist. Because of the backlist and the household registration book, he was unable to be protected by relocating to another part of Vietnam. The applicant also claimed that because of his actual or imputed political profile, if he returned to Vietnam he would be arrested, and abused both psychologically and physically by the police to silence him and he could potentially die in custody without his family knowing.
Having considered the facts and circumstances of the applicant’s case, along with the evidence presented, the Tribunal has found that the applicant does not have the profile of a public political activist in Vietnam or in Australia, and nor is he a person of interest to the Vietnamese authorities. The Tribunal is of the view that upon the applicant’s return to Vietnam, he is not likely to be prosecuted or imprisoned for having his current political views. Therefore, the Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his departure from Vietnam and having sought protection in Australia.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and regard has been given to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm.
Having already concluded he does not meet the refugee criterion as provided by the Act,[62] the Tribunal has considered the alternative complementary protection criterion.[63] In considering this alternative criterion, an assessment was undertaken 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 he will suffer significant harm as it is defined in the Act.[64]
[62]Migration Act 1958 (Cth), s 36(2)(a).
[63]Migration Act 1958 (Cth), s 36(2)(aa).
[64]Migration Act 1958 (Cth), s 36(2A).
Because of the above findings, 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 he claimed if he returns 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.[65]
[65]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
It is noted by the Tribunal that the applicant claims he feared returning to Vietnam because of his background of being involved in an underground organisation and attending political protests. As already indicated above, the Tribunal has rejected the applicant’s claims that he possesses a well-founded fear of persecution by the Vietnamese authorities, and the Tribunal does not accept that he will be arrested, detained and mistreated as he claims. The Tribunal does not accept that he faces a real risk of significant harm in Vietnam for reasons of any of his political views.
The Tribunal has considered the applicant’s 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.[66] The DFAT report further provides that the Vietnamese authorities only occasionally 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.[67]
[66]DFAT Country Information Report, Vietnam dated 11/01/2022, paragraph 5.34.
[67]DFAT Country Information Report, Vietnam dated 11/01/2022, paragraph 5.31.
When applying the considerations reached in respect to the applicant’s case and the material he relies upon, the Tribunal does not accept that the evidence supports any hypotheses that he faces any real risk of significant harm for reasons of his return to Vietnam as a failed asylum seeker.
Having considered all his claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if the applicant returns to Vietnam now or in the reasonably foreseeable future: he will be arbitrarily deprived of his life; the death penalty will be carried out on him; or he will be subjected to torture or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied that 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 he will suffer significant harm as defined in section 36(2A) of the Act. Thus, the Tribunal finds the applicant does not satisfy the criterion as provided in section 36(2)(aa) of the Act.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there is not a real chance in the reasonably foreseeable future that he will be persecuted for reasons of his political opinion about the Vietnamese government or his membership of an underground organisation in Vietnam. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and therefore, he is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection
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 the applicant being removed from Australia to Vietnam, he 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 applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does 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 applicant is a person in respect of whom Australia has protection obligations as provided by the Act.[68]
[68]Migration Act 1958 (Cth), s 36(2)(aa).
There is no suggestion that the applicant satisfies section 36(2) of the Act on the basis of 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 applicant does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant 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 5169

8 December 2022

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