2011000 (Refugee)

[2022] AATA 4904

2011000 (Refugee) [2022] AATA 4904 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathryn Smith

CASE NUMBER:  2011000

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:3 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 03 November 2022 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – original claims abandoned – new claims – sexual orientation – homosexual men – gay conversion therapy – credibility concerns – lack of corroborative evidence – voluntary return – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 23/06/2020.

2.     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.[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.[6]

[2]The applicant’s application was received by the Department of Home Affairs on 17/12/2019.

[3]The delegate’s refusal was made on 23/06/2020.

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

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

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

3.     The applicant was represented in relation to the review, and he 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 relating to his application but was unable to make a favourable decision on that information alone.[8] 

[7]The applicant’s review application was filed with the Tribunal on 02/07/2020.

[8]The Tribunal advised the applicant on 07/07/2022.

4.     The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9]The applicant 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 25/08/2022.

Criteria for a protection visa

5. 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).

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.[11]

[11]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.[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).

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.[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.

9.     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).

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 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).

11.      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

12.      The applicant claims to be a citizen of Vietnam and he provided a copy of his passport to authenticate this claim.[21]   The Tribunal accepts the applicant’s identity and 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]Applicant’s passport issued [in 2020] by the Vietnamese Consulate in Sydney.

[22]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 the applicant is not excluded from Australia’s protection obligations.[23]

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

Mandatory considerations

14.      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 AND THE EVIDENCE

15.      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]

16.      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.

17.      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]

18.      The applicant’s position is that when his original application was filed in December 2019, he had engaged a migration agent who did not follow his instructions with respect to the claims he wished to be included in the application.  The delegate subsequently refused the application, and the applicant has since engaged new representation.

19.      Notwithstanding the passage of eight and a half years between the applicant’s arrival in Australia and the making of his application, the applicant now seeks to abandon the claims he originally made, and in substitution he relies upon a new claim relating to his sexual orientation.  All of this is explained in greater detail later in these reasons.    

APPLICANT’S CLAIMS

Applicant’s original claims

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

[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.

1. When the applicant’s original application was filed with the Department, claims were made that he had a political profile in Vietnam which opposed the communist Vietnamese government, and because he was a political dissident he held a well-founded fear of persecution if he was to return to Vietnam.  For the reasons outlined below, the applicant now abandons those claims.

   Applicant’s new claim – sexual orientation

2. The position that the applicant now adopts is that he possesses a genuine fear for his safety should he return to Vietnam because he would be associating with homosexual men in Vietnam.  That fear relates to the members of his own family and members of the community persecuting him because of his sexual orientation.  That persecution would be by means of torture and discrimination as his family and the community will try to ‘correct’ him through harmful ‘gay conversion therapy’.

3. When explaining why he abandoned his previous claim that he was a political dissident, and now adopted his new claim in respect to his alleged sexual orientation, he said that his previous migration agent ignored his instructions when his original application was drafted, signed and lodged with the Department.  He claimed that notwithstanding the advice he gave to his previous migration agent about his fear of returning to Vietnam was based on him experiencing issues because of his sexual orientation, the claims contained within the original application were submitted on the basis of advice he received from that agent.  It is alleged by the applicant that he was advised by his former agent to forget making a claim in regard to his sexual orientation, but instead seek to enter into a relationship with a woman, get married and have children and then make an application for a partner visa. 

4. Although he does not support the communist Vietnamese government, the applicant said that he has not been involved in any anti-government activities in Vietnam or Australia that would have caused the Vietnamese authorities to be aware of him or would cause the government to adversely monitor him. The applicant alleged that his former agent insisted that his application would be better served on being lodged on the grounds that he was a political dissident as opposed to his sexual orientation.

5. When discussing his background, and his reasons for leaving Vietnam, the applicant said he was from a small family and his parents were evangelist Roman Catholics who enforced their strict religious beliefs on their children, including him.  He described that his family was part of a very conservative, working-class community which held similar conservative values to the majority of Vietnamese. 

6. Although his early childhood was unremarkable, he claimed that about the time he was entering puberty and into his young adulthood he developed feminine behaviours and preferences towards homosexuality.  Because of this, he suffered unprovoked violence, along with constant bullying in the forms of physical, mental and verbal abuse by his peers, members of the community, and his parents. 

7. The applicant claims that he did not initially realise he was gay but knew that he was ‘different’.  He was constantly harassed and bullied by other kids at his high school and his only protection was a neighbour he went to school with.  Because of the homophobic culture within his school, the teachers and school officials did nothing to protect him.  It was only when he was aged about 14 to 15 that he realised that he was homosexual, and he opened a Facebook account in a false name and met another boy online who lived in Ho Chi Minh City. 

8. After he finished high school, he moved to Ho Chi Minh City to study.  It was then that he met his Facebook friend.  He described that they had an intimate and close friendship which lasted eight months, during which time he experienced his first gay encounter.         

9. The applicant claims that prior to relocating to Ho Chi Minh City, his parents began organising surprise meetings between him and different girls.  Even his grandmother would organise to have girls waiting to meet him when he arrived home from high school.  His family wanted him to choose a girl for an arranged marriage.  Because he was not interested in girls, this led to arguments between the applicant and his parents.  

10. The applicant went on to claim that as time went by, he did not take on a physical appearance as a masculine man.  Because of this, many people began to suspect he was gay.  He claimed there were several instances when random members of the public in Ho Chi Minh City targeted him with threats and actual violence.  He gave an example of when he was walking along the street with his Facebook friend, and they came upon a group of men who chased them because they suspected he was gay.  He did not go to the police because he was scared that not only would the police not help, but the police themselves might perpetrate violence towards him, or he would be the target of revenge attacks for reporting the people who chased him.  When assessing this claim, the Tribunal notes the country information contained within the DFAT report that street violence against LGBTIQ people is uncommon.  However, the violence is more likely to occur in domestic settings, particularly from parents but also among intimate partners.[28]

    [28]The DFAT country information report, Vietnam, dated 11/01/1922, page 25, paragraph 3.99.

11. After living in Ho Chi Minh City for a year, the applicant moved back to his home village in around May 2011 to live with my parents.  He claimed that he thought that as long as he kept his sexual orientation a secret, he would be safe.  Notwithstanding this, he started to explore his sexuality more with the help of the internet and he created a new Facebook page for himself which he used to explore various homosexual dating sites.  He met another male online who lived in a nearby village.  He claimed that they later met and started a secret relationship.

12. At this point, the Tribunal observes that despite the applicant claiming that he returned to his home village ‘in around May 2011’, and he established a Facebook profile thereafter, no specific timeframe was provided as to when or how long after the page was established that he met his friend in the neighbouring village.  If this alleged relationship existed as the applicant says it did, the Tribunal does not accept that it was as long lasting as the applicant suggests in his statutory declaration because his own travel records show that he entered Australia [in] June 2011.       

13. The applicant went on to describe in general terms that gossip about him being gay began to spread around his home village.  His aunty heard stories circulating about him, and because of the gossip and rumours about his sexuality, he was pressured by his community to marry a woman, which he refused.  After refusing multiple times to marry a woman, his father accused him of being gay and told him of the shame he brought to the community and his family.  Despite the pressure, he refused to enter any forced marriage with a woman.  He said that although he could not tell ‘them’ why, it was obviously because he did not like women.  He said that around this time there was an almost daily occurrence of him being verbally abused and threatened by random members of the community in his home village.  He felt scared and trapped and did not know what to do or where to go. 

14. The Tribunal is of the view that those comments are all generalised descriptions devoid of any specificity.  The applicant claims that he grew up and was schooled in a rural village.  Although he never disclosed the population of the village, the Tribunal does not accept that he would not have known many if not a vast majority of the village’s inhabitants.  In the Tribunal’s view, his comments about being harassed by these people which he described as random people does not have a ring of sincerity attached to it.          

1. The applicant went on to claim that it was around this time that his father suspected that he was gay and decided that the applicant should move away from Vietnam.   His father told him that if he stayed, he would have to give in to the community pressure and be punished, or to try and ‘cure’ him.  To help him move, his parents used a large part of their savings to finance his travel to Australia on a student visa where he was initially enrolled to study [Discipline 1] at [University 1]. 

2. The applicant went on to describe that when living in Australia he was relatively open about his sexual orientation.  He said that in December 2016 he became involved in an open homosexual relationship and lived with an Australian man for two years.  Prior to their relationship ending, he lodged a partner visa application, but ultimately withdrew this application when their relationship ended.  The Tribunal notes that apart from the applicant claiming to have been in a homosexual relationship; and notwithstanding that he named his alleged former partner, and he had filed and later withdrew a partner visa application for that alleged relationship, there is a distinct lack of tangible and probative evidence provided to the Tribunal in the manner of any photographs, letters, emails, exchanges of texts or other social media messages between himself and his alleged former same-sex partner which attests to or substantiates his claim about his sexual orientation. When assessing those circumstances and the available evidence, the Tribunal does not accept that he was involved in a same-sex relationship.       

3. The applicant went on to claim that when that alleged same-sex relationship ended, he began to receive text messages from his family back in Vietnam which put pressure on him to start a relationship with a woman.  He suggested that his parents did not want him to return to Vietnam because of the embarrassment his sexuality caused his family, and this may also entice the community to punish him.  The Tribunal notes that the applicant does not describe or outline what the suggested punishment would involve, and the applicant has not provided copies of those text messages his parents allegedly sent him and nor did he explain why they were not available to substantiate this claim.  Nor does he explain whether his parents were aware of, or if they had knowledge of his alleged same sex relationship with an Australian man. 

4. The applicant claimed that in order to appease his parents, he entered into a fake relationship with a woman and applied for another partner visa and the application was partly because he was sick of disappointing his parents, and partly him wanting to make a relationship with a woman work if it would mean his family and community accepting him.

5. In the Tribunal’s view, his admission about making the fake application reveals that it was not undertaken on bona fide grounds, but rather on the false premise of the existence of a relationship to convince the Department to approve his application.  The Tribunal considers that his concession about his relationship being fake brings into question a credibility issue for the applicant and the Tribunal does not accept and rejects his claim that he tried entering into a relationship with a woman as a way for his family and community to accept him.  This comment in itself contradicts his earlier claim that his community and family previously suspected he was a homosexual, and this is why his parents funded his travel to Australia.   

6. Returning to the applicant’s two partner visa applications, the Tribunal notes that his first partner visa application relating to his alleged same-sex relationship was filed on 5 October 2017 and withdrawn on 7 June 2019.  Overlapping the timespan of that application was his second application relating to his fake relationship with a woman.  That second application was filed on 3 May 2019 and withdrawn on 21 August 2019.  Four months later, the applicant filed his protection visa application.[29]

   [29]The Department received the applicant’s application for a protection visa on 17/12/2019.

7. The applicant claims that since he withdrew his second partner visa application, he has severed communications with his parents in Vietnam, although he did contact them in February 2022 to check that they were ok.  He claimed his parents were not interested in speaking with him, leaving his younger brother as the only contact in his family.  The Tribunal notes that the applicant provided no tangible or probative evidence in the form of text messages or other documentation to validate that claim.

8. The applicant said that if he is required to return to Vietnam, he fears that his parents and his community will force him to marry a woman and if he does not, his family and community will continue to suspect that he is gay, and he will be forced to engage in medical treatment to be cured of his homosexuality.  He further claims that if he returned to Vietnam and refused to take a wife, this will also bring shame to his family and community, which will put his life in danger.  He claimed that in Vietnam, if a person brings such shame upon their family, it is common for the family to track them down and punish or kill them.   The Tribunal does not accept those claims for the following reasons.

9. The DFAT country information report on Vietnam provides that family pressure is strong, and many families believe that LGBTIQ identity can be ‘cured’.  LGBTIQ people may be forced by their families to attend conversion therapy or face the risk of violence or family pressure to marry.[30]  Notwithstanding the country information just discussed, the Tribunal does not accept the applicant claims because on his own evidence, he said that despite his father suspecting as early as 2011 that he was gay, his parents funded his move to Australia on a student visa.  His claim of having a well-founded fear of returning to Vietnam does not fit with the narrative of his evidence that now in 2022 his parents and community are upset with his sexuality, yet as far back as 2011 his family and community apparently suspected the identity of his sexuality.  Notwithstanding that, he made two trips back to visit his family in 2014 and 2016 and the Tribunal notes that the applicant does not advocate that he experienced any difficulties or harm during either of those trips.  The Tribunal’s view is that if there was any credibility to the applicant’s claim that he will suffer significant harm or there is a real chance that he would suffer serious harm if he returned to Vietnam, this is nullified by his own evidence about those return trips.  On each of those occasions when he returned to Vietnam, he visited his family and stayed for about six weeks.  He provided no tangible evidence and has not informed the Tribunal of any incidents where he has suffered harm, or disclosed that those occasions caused him to suffer the risk of harm from either his family or the community when he was back in Vietnam.

   [30]The DFAT country information report, Vietnam, dated 11/01/1922, pages 24-25, paragraph 3.97.

10. When discussing the LGBTIQ community within Vietnam, the applicant told the Tribunal that he accepts that Vietnam as a country has taken some steps to become more progressive in regard to LGBTIQ people, however it was his belief the Vietnamese government is trying to take attention from the larger issues at hand, and in a sense the government is simply making token gestures and do not follow up with real change, with society still stigmatising and discriminating against members of the LGBTIQ community.  He went on to say that there is no unfair dismissal or anti-discrimination laws to prevent the prevalence of discrimination against the LGBTIQ community.  He said he fears that if he went back to Vietnam, because of his sexual orientation, he will be unable to secure employment to support himself.  If he did manage to find work, he would face bullying, harassment and threats from other employees.  He claims that he knows about that those issues which will impact upon his employment prospects from what his friends in Vietnam have told him, although the Tribunal notes that he provided no supporting or probative evidence from his friends to validate his claim.  When assessing this claim, the Tribunal considers the claim to be vague, weak and tenuous and it is rejected.

11. When assessing the applicant’s claims in respect to his proposal that he will suffer significant harm or there is a real chance that he would suffer serious harm, the Tribunal has considered the country information contained within the DFAT report, specifically where sexual orientation is discussed.  LGBTIQ rights in Vietnam are mixed and sex between adults of the same sex is legal and LGBTIQ civil society organisations (CSO) are relatively free in their operation.  Vietnam has a large CSO landscape that is constitutionally protected (article 25), and although heavily restricted in practice, vocal CSOs involved in less sensitive subjects such as women’s and LGBTIQ groups are relatively free to operate.[31]  Despite relative freedom from official interference, social stigma and discrimination against LGBTIQ individuals is common, the situation is better in large cities of Vietnam because of the existence of LGBTIQ friendly spaces such as cafes, shops and galleries.  Many LGBTIQ people use smart phone applications and directories such as social media and Facebook to locate and engage in physical and online communities.  The Tribunal notes that the country information provided within the DFAT parallels with the applicant’s experiences because he alleged he had established Facebook profiles to meet other gay men.[32]   

    [31]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 31, paragraphs 3.68.

    [32]The DFAT country information report, Vietnam, dated 11/01/1922, page 24, paragraph 3.94.

12. The DFAT report further provides that in Vietnam, although LGBTIQ people do not have access to same-sex marriage or the right to adopt children, LGBTIQ issues are not seen as a particularly sensitive topic by the Government.  There is no impediment to pride parades generally going ahead without being registered, in contrast to political rallies and protests, Government sanctioned pride events went ahead even during the COVID-19 pandemic.[33]

    [33]The DFAT country information report, Vietnam, dated 11/01/1922, page 24, paragraph 3.95.

13. The DFAT assessed that LGBTIQ people in Vietnam face a low risk of official discrimination but also are not protected by laws prohibiting discrimination and hate speech.  LGBTIQ people face a moderate risk of societal discrimination, particularly within their families.  Although LGBTIQ people in Vietnam do not enjoy day-to-day acceptance, they are unlikely to experience violence or overt discrimination in access to goods and services.[34]

    [34]The DFAT country information report, Vietnam, dated 11/01/1922, page 25, paragraph 3.101.

14. The Tribunal notes that the applicant has provided no evidence relating to when he lived in Vietnam, or even upon the two occasions he returned to Vietnam in 2014 and 2016 of his family or the community ever making a suggestion of or having undertaken any activities or measures to ‘cure’ the applicant of his homosexuality by any method or means including medical treatment.  Nor is there is any evidence of when he has lived in Australia of his family or the community suggesting, threatening or taking any measures to ‘cure’ the applicant.  The Tribunal has carefully considered the applicant’s evidence on this claim and does not accept that if the applicant returned to Vietnam, his family or the community of the village where he lived will undertake any measures against the applicant in respect to his homosexuality. 

15. When discussing why he could not relocate to a different location within Vietnam for protection, the applicant said that he was scared that no matter where he relocated to in Vietnam, it will be just a matter of time before that community recognises that he was gay and seeks to punish or ‘fix’ him.  He added that he cannot go back to living in fear that people will find out who he was.  To support this claim, he said that he was not in the privileged upper-class, and if he returned to Vietnam he will not be a part of the progressive and educated upper-class that embrace a more progressive approach to LGBTIQ rights.  This is not the reality for working-class people like him anywhere in the country of Vietnam.  Noting that the applicant had previously relocated to another part of Vietnam and lived in Ho Chi Minh City, the Tribunal rejects the applicant’s claim that despite his alleged sexual orientation, he cannot relocate to another part of Vietnam. 

16. Within the submissions filed by his representative, it is claimed that being from a small rural community with strictly religious parents, this made the applicant particularly fearful of being subjected to gay conversion therapy.  Additionally, and based on his own experiences within the bigger cities in Vietnam, he was also concerned about facing substantial discrimination even if he was to relocate.  Respectfully, the Tribunal rejects this claim and the submissions made to support it as the Tribunal notes that the applicant’s own evidence was that he voluntarily moved to Ho Chi Minh City to study and work.  He stayed there for about a year, and during that time he had a same-sex relationship.  In outlining his experiences of harm or discrimination, the only incident he could describe was a one off incident when he was chased by a group of men who believed that he was a homosexual.

17. When assessing the applicant’s claim that he cannot relocate to another area within Vietnam to be protected because his family would be able to find him, and others within the community to where he relocated to would get to know of his sexual orientation, the Tribunal is of the view that this claim is vague, tenuous and weak because in 2014 and 2016 the applicant travelled back to Vietnam to see his family, and he makes no claim of suffering harm from either his family or members of his community.   

18. The applicant argued that when the Tribunal turns its mind to the ‘real chance’ test it should consider that often applicants for refugee status engage in a desperate battle for freedom, if not life itself[35] and the test does not require the applicant to show that he has been subjected to past harm for a finding that there is a real chance of harm occurring in the future.  The applicant also drew the Tribunal’s attention to the High Court’s determination that a ‘real chance’ was a possibility that is not remote or far-fetched and is not measured by a set percentage. The focus of ‘real chance’ is to the future which involves a degree of speculation and the weighing up of reasonable possibilities.[36]  The applicant went on to say that as a member of the LGBTIQ community, he has a real chance of facing persecution in the form of physical harm, verbal abuse, and significant discrimination if he was to be returned to Vietnam.[37] 

    [35]Abebe v Commonwealth (1999) 197 CLR 510, [191].

    [36]The applicant’s submissions filed with the Tribunal on 19/08/2022 at paragraphs 31 – 32 referencing Abebe v Commonwealth (1999) 197 CLR 510, [191] – [192]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

    [37]The applicant’s submissions filed with the Tribunal on 19/08/2022 at paragraphs 33.

19. The applicant proposed that the determination of the High Court in Abebe v Commonwealth (1999) 197 CLR 510 was applicable to his case in that:

    a Tribunal will often find assistance in deciding whether a person has a well-founded fear of persecution by looking at that person's prior experiences. If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded. But proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution. Regrettably, cases can readily be imagined where an applicant's fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past.[38]

    [38]Abebe v Commonwealth (1999) 197 CLR 510, [192].

20. When considering that argument, a balance is required of the principle as outlined above to the facts of the applicant’s case and when assessing the features of this matter.  The Tribunal rejects his claim and argument that there is a real chance of him facing persecution, particularly when his own testimony outlines two examples of him returning to Vietnam in 2014 and 2016.  On each occasion, he visited his family and stayed for about six weeks.  Although he advocates that there is a real chance of him being persecuted by his family should he return to Vietnam in the future, and notwithstanding his evidence that his family and the community apparently held suspicions about his sexual orientation, he did not provide any tangible or probative evidence of him being subjected to any form of physical harm, verbal abuse, and significant discrimination during either of those visits he undertook.

    Delay in lodging an application for protection

21. The Tribunal identifies that there has been a significant delay between the applicant’s arrival in Australia in June 2011 on a student visa to when he made his original application for a protection visa in December 2019.  That is a period of eight and a half years, during which time he returned to Vietnam on two occasions in 2014 and 2016.  On his first trip, he departed Australia [in] January 2014 and returned about six weeks later [in] February 2014.  In regard to the second trip to Vietnam, he departed Australia [in] February 2016 and again stay for a period of about six weeks, returning to Australia [in] March 2016.  Although those trips are discussed elsewhere in these reasons, the Tribunal observes that the applicant has presented no evidence, nor has he advocated any position during either of those two trips to Vietnam that he experienced harm or was persecuted in any way.    

22. In respect to any consideration by the Tribunal about the delay between the applicant’s arrival in Australia and his application for a protection visa, guidance can be found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.  Therefore, the significant delay in the applicant seeking a protection visa can support an adverse credibility finding as well as a finding that he does not have a well-founded fear of harm.  A significant delay is not behaviour indicative of someone who fears for their physical safety[39] and the Tribunal particularly notes that the applicant has offered no explanation as to the exceptionally long delay in making his application.

    [39] Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423; Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370, [22].

23. The Tribunal has considered the applicant’s delay in applying for protection in Australia and concludes that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Vietnam.  The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

24. Having regard to the features identified in regard to the exceptional delay between when the applicant arrived in Australia in June 2011 to when he made his original application for a protection visa in December 2019, along with the two return trips the applicant made to Vietnam, the Tribunal finds that an adverse inference is drawn as to the veracity and genuineness of his claim in respect to him having a well-founded fear of returning to Vietnam.

    New claim 

1. The claim, made by the applicant in regard to his sexual orientation is a new claim, and one which was not earlier raised with the delegate prior to the decision to refuse his application.  The Tribunal is aware from disclosures and concessions made by the applicant that he discharged his previous agent about a month after his original application was filed and he acknowledges that he had discussions with the agent about the claims being drafted relating to his sexual orientation.  Notwithstanding his own experience as the author and applicant associated with two previous partner visa applications filed with Department, he said that he did not read the claims and he went ahead and signed the application acknowledging the truthfulness of the claims made.  The Tribunal does not accept that he did not read the application, in particular the claims. 

2. When assessing the applicant’s evidence and the material available to it, the Tribunal also notes that the Department invited the applicant for an appointment on 20 February 2020.  This invitation was expended to him prior to when he discharged his previous agent.  The applicant acknowledges that he was aware of the invitation.  Notwithstanding all of this, including his previous discussions with the agent about his claims, he did not attend the appointment with the Department or advise the Department of his concerns about the claims made.  Even when he received and read the delegate’s reasons for refusing his application in June 2020, and he filed his review application with the Tribunal shortly thereafter on 2 July 2020, he did not contact the Department or the Tribunal to advise that his original application should have included claims relating to his sexual orientation, and not as a political dissident.  Nor was there any issue raised in regard to the agent’s alleged misconduct. 

3. Instead, the applicant waited for 12 months before engaging new representation, with those representatives informing the Tribunal on 9 July 2021 that: 

   We have recently come on record as [the applicant]'s representatives.  Accordingly, we request a complete copy of all material before the Administrative Appeals Tribunal and the Department of Home Affairs concerning the above review applicant, including, but not limited to, all letters, visa applications forms, supporting evidence, original documentation, original Departmental file, audio recordings from any hearings, decision letters and decision records.

4. Even at that stage, there was no indication given by the applicant to the Tribunal of his desire to raise the issue relating to the allegation of any impropriety of his former agent, or that he wished to raise a new claim relating to his sexual orientation.  It was not until a further 13 months later, and after the Tribunal had scheduled the applicant’s application for a hearing, that his new claims are raised with the Tribunal when his representative filed his statutory declaration and submissions on 19 August 2022.

5. When assessing the timeline just explained, the claims relating to sexual orientation were made over two and a half years after he first lodged his application, and about two years after he read the delegate’s decision and became aware that his former agent had allegedly submitted his application based on incorrect claims.  The Tribunal also notes that significantly, the new claims about his sexual orientation were raised eleven years after he first arrived in Australia on a student visa, and as referred to previously in these reasons, he has returned to Vietnam to visit his parents twice since then.                 

6. The Tribunal notes that no information was disclosed, or evidence provided that any complaint had been made to the agent’s regulatory organisation about his alleged conduct, and this gives further concern to the Tribunal as to the veracity of the new claim. 

7. As the Tribunal has already observed, the applicant’s application for a protection visa was initially lodged about eight and a half years after he first arrived in Australia.  The claims outlined in that application are now abandoned, and instead the applicant raises new claims in respect to his sexual orientation.  Those new claims were only raised after the passing of eleven years after the applicant arrived in Australia, which, in the Tribunal’s view, calls into question the applicant’s veracity in respect to not only his application, but also the new claims he relies upon.  The Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence which were not raised or presented before the delegate’s original decision.  If the Tribunal is satisfied that the applicant does not have a reasonable explanation why his claim was not made or evidence was not presented before the primary decision was made, the Tribunal is to draw an unfavourable inference in respect to the applicant’s credibility.[40] 

   [40]Migration Act 1958 (Cth), s 423A.

8. In that regard, the Tribunal is not satisfied that the applicant is able to show a reasonable explanation why his new claim, or the evidence support this claim were not presented at a far earlier stage to the delegate and an adverse inference in respect the applicant’s credibility, along with the credibility of the claims made.

   Conclusion

9. In assessing the applicant’s claim in respect to his sexuality, the Tribunal accepts that he filed an application for a partner visa where he claimed that he was in a same sex relationship.  That application was later withdrawn by the applicant.  As discussed earlier in these reasons, apart from that information, he has not provided the Tribunal with any tangible or probative evidence to validate this claim.  This is notwithstanding the opportunities afforded to him by the Department and the Tribunal to provide anything in the way of a photograph, letter, email, text message or video footage which documented his alleged same-sex relationship. 

10. When assessing those features just identified, coupled with his late claim and the change of his claim, and his concession that he lodged a fake application for a partner visa, the Tribunal finds that his claim is vague, weak and tenuous.  He has made a very late application for a protection visa after his arrival in Australia, and the application was only made after he had filed and withdrew his two earlier partner visa applications.  In that regard, the Tribunal finds that an adverse inference can be drawn as to the genuineness of his application, and the Tribunal finds that his explanation about his previous agent not following his instructions and the events that have unfolded since are not a reasonable explanation for the new claim he raised about his sexual orientation. 

11. In that regard, and along with the findings already outlined in these reasons, the Tribunal finds that the evidence provided by the applicant does not support the hypothesis that a real risk exists whereby he will suffer significant harm or there is a real chance that he would suffer serious harm if he were to return to Vietnam.

12. The Tribunal is of the view that any reasonable assessment based on all the claims raised by the applicant and the evidence he used to support those claims would conclude that there is not a real chance of him being subjected to persecution in Vietnam for any of the reasons provided in section 5J(1)(a) of the Act.

13. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

    Refugee findings

14. The Tribunal has carefully considered the applicant’s claims that he has a well-founded fear that if he returned to Vietnam, he will be persecuted because of his sexual orientation.  In respect to him relocating within Vietnam for protection, he claims that because of his sexual orientation his family will track him down and cause him harm.   

15. The Tribunal has also carefully considered the applicant’s claims that because of his alleged sexual orientation, he has a well-founded fear of returning to Vietnam.  It is the Tribunal’s findings that this claim was vague, weak and tenuous and it was not accepted, and the Tribunal rejects it. 

16. The Tribunal also carefully considered the applicant’s claim that he could not be protected within Vietnam, and even if he did relocate to another locality within Vietnam, his family could track him down and harm him.  The Tribunal was told of the applicant relocating to Ho Chi Minh City, and later returning to his home village.  All this took place after his family suspected his sexuality.  This claim was vague, weak and tenuous and it was not accepted, and the Tribunal rejects it.

17. For completeness, earlier in these reasons the Tribunal outlined its findings and rejected the applicant’s claim.  Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s evidence, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm because of any of the alleged claims. 

18. The Tribunal also finds that based on the facts, features and circumstances of the applicant’s case, he is not likely to be persecuted or imprisoned for any of the claims he made; and he does not face a real chance of serious harm.     

    Complementary protection considerations

19. The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm.

20. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[41] the Tribunal has considered the alternative criterion.[42]  In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[43]

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

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

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

21. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned 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.[44]

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

22. The Tribunal notes the applicant claims that because of his sexuality, if he returned to Vietnam he will harmed by his family and members of his community, although he does not claim that he previously suffered harm within Vietnam.  Earlier in these reasons, the Tribunal indicated that his claim that he possessed a well-founded fear of persecution by his family and the community has been rejected; and the Tribunal does not accept that he will face a real risk of significant harm in Vietnam for the reasons he claims in respect to his alleged sexual orientation. 

23. 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.[45]  The DFAT report further provides that it is only occasionally the Vietnamese authorities question returnees from Australia upon their arrival back in Vietnam. That interview process generally takes about two hours and only focuses on obtaining information about whether the applicants have engaged in any illegal activity.[46]

    [45]The DFAT Country Information Report, Vietnam, dated 11/01/2022, paragraph 5.34.

    [46]The DFAT Country Information Report, Vietnam, dated 11/01/2022, paragraph 5.31.

24. When applying the above considerations in respect to the applicant’s case and the material he relies upon, the Tribunal does not accept that the evidence supports any hypotheses of him facing any real risk of significant harm for reasons of his return to Vietnam as failed asylum seekers.

25. Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to Vietnam now or in the reasonably foreseeable future, he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; nor will he be subjected to degrading treatment or punishment.

    Conclusion: refugee criterion

26. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. 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 criterion

27. 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

28. 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.

29. 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 under section 36(2)(aa) of the Act.

30. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.

    DECISION

31. 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.

    …