2014736 (Refugee)

2014736 (Refugee) [2023] AATA 4536 (25 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Dai (Karen) Vo (MARN: 0635245)
CASE NUMBER:  2014736
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Amanda Mendes Da Costa
DATE:25 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2023 at 10.24am

CATCHWORDS
REFUGEE – protection visa – Vietnam – a child born in Australia – Citizen Identity Card (CIC) – household registration – child of a single mother – separated or divorced woman – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam applied for the visa on 27 November 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) and was therefore not a refugee as defined in s 5H of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, that there was a real risk he would suffer significant harm. They therefore found that he did not meet the grounds for complementary protection under s 36(2)(aa) of the Act.
On 14 September 2023 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 October 2023.
The applicant was represented in relation to the review.
On 11 October 2023 the applicant’s representative advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his protection application, the applicant claims to be a citizen of Vietnam who was born in Australia on [Date 1]. The applicant provided the Department with the following identity documents:
·Australian birth certificate[1] issued to [the applicant], born on [Date 1] to parents [Mr A] and [Ms B]; and
·Vietnamese passport[2] issued to [the applicant], born on [Date 1].
[1] Birth certificate No. [number]
[2] Passport No. [number]
In his application form, the applicant indicates that his ethnic group is Vietnamese, and he has no religion. He further states that he speaks, reads and writes English and speaks Vietnamese. In relation to his personal circumstances, the applicant states that his family unit is comprised of his mother, father, brother and [number] sisters, none of whom are included in his visa application. The applicant further states that his parents are each a citizen of Vietnam, his brother is an Australian citizen, and his sisters are each a citizen of Vietnam. He claims that his parents are separated, and his mother is his primary carer.
The Tribunal notes that movement records kept by the Department for the applicant show that he has not departed Australia since his birth.
The issue in this case is whether the applicant faces a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) and therefore is a refugee as defined in s 5H of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims for the Protection visa application
The applicant’s claims for protection are contained in his protection visa application form, dated 27 November 2018 and were detailed by the delegate in the decision dated 30 September 2020 as follows.
·He was born and raised in Australia and is unfamiliar with Vietnam as he has never travelled there.
·The applicant cannot return to Vietnam as he is dependent on his parents and his parents are unable to return to Vietnam.
·His parents have separated, and his mother is his primary care giver.
·He would struggle if he returned to Vietnam as he has no Vietnamese identity.
·His mother has also lost his Vietnamese identity and household registration documents as he has been absent from Vietnam for too long.
·He has no home to return to in Vietnam and fears being mistreated and exposed to prejudice in Vietnam because of his parents’ absence from Vietnam.
·His mother has advised him that they fear for their safety if they return to Vietnam as the Vietnamese authorities will think that they have betrayed Vietnam for having left the country for so long.
·He has no Vietnamese identity and will be considered stateless by the Vietnamese authorities. He claims that as a result he will not be able to receive any support from government or private organizations.
Departmental decision of 30 September 2020
The delegate was satisfied that the applicant’s identity was as claimed that he was a Vietnamese national and that this was the appropriate country against which to assess his claims. The delegate was further satisfied that the applicant did not hold any other citizenship or have a right to reside or enter another country.
The delegate found that if the applicant returned to Vietnam he would do so as the child of a single mother. Whilst the delegate accepted that country information showed that single mothers in Vietnam were subject to some stigma, such stigma was likely to take the form of exclusion and neglect rather than active acts of aggression. The delegate was satisfied that the applicant was not at risk of harm from the authorities or the wider community, due to being the child of a single mother or being without a father.
The delegate further found that there were a wide range of services provided by non-government organizations which were designed to assist single mothers and their children. The delegated noted that these services were available on both a short-term and long-term basis.
Accepted personal circumstances
The Tribunal accepts the following aspects of the applicant’s personal circumstances:
·He was born in Australia on [Date 1].
·He his ethnicity is Vietnamese, and he has no religion.
·His parents were both born in Vietnam and are Vietnamese citizens.
·His brother is an Australian citizen, and his [number] sisters are Vietnamese citizens.
·He has lived his life in Australia and has not left the country since his birth.
Third country protection
On the evidence before it, the Tribunal is also satisfied that, for the purpose of s 3693) of the Act, the applicant does not have a right to enter and reside in a third country.
Country information - Vietnam
The Tribunal notes that the Department of Foreign Affairs and Trade Country Information Report, Vietnam (11 January 2022) includes the following information:
Women
1.1     Discrimination against women is banned by the Vietnam Constitution (article 26). The UN Development Programme 2019 Gender Equality Index (the most recent) ranked Vietnam 65^th (with 1 being the most equal) out of 162 countries. Australia ranked 25^th. The International Labour Organization notes on its website that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than do men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.
1.2     Women’s labour participation rate is one of the highest in the world at 73 per cent in 2019, according to World Bank data (Australia’s female workforce participation rate was 61 per cent in the same year). DFAT has heard from sources that some women have been fired for becoming pregnant, which may be an illegal, but nonetheless practised, condition of employment. Women over 35 may also have difficulty finding employment and DFAT is aware that some women claim that they were terminated at that age for age-related reasons. In-country sources told DFAT women have been disproportionately affected by COVID-19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.
1.3     Traditional views about family disadvantage women. Son preference continues, as in other Asian countries, where the traditional view is that sons and men, rather than daughters and women, carry on the family name and traditions. The problem of ‘missing girls’ and unnaturally high numbers of male births compared to female births result. Over time these preferences are lessening (but are still present) and women can now legally inherit assets.
1.4     Vietnam has family planning policies that theoretically restrict the number of children a woman can have. DFAT understands family planning policies are not strictly enforced and it is common for families to have more than the allowed two children. Today, there are few, if any, practical consequences for having more than two children; children would not be denied healthcare or education and their parents would not be punished.
Domestic violence
1.5     Violence and threatening violence against women is against the law. Spousal rape is illegal. The issue is not taboo and is discussed in the media. Some CSOs addressing women’s rights have freedom to operate and agitate for reform, and they participate in training police and judicial officers. A government survey, supported by DFAT in 2020, found that 63 per cent of women have experienced some kind of (physical, sexual, emotional, behavioural and/or economic) abuse from husbands or male partners.
1.6     Attitudes towards domestic violence are underpinned by a number of cultural factors, including traditional views of family, marriage and ‘saving face’, and the common practice for women to live with their husband’s family. Local sources noted women are expected to be a ‘good wife’ and those who experience violence may be labelled by society, families or authorities as a ‘bad wife’; violence against them is considered to be their fault. Victims of domestic violence may experience feelings of shame or failure. The concept of honour is commonly linked to female sexual assault; marriage prospects may be considered damaged for rape victims. Police reportedly often encourage victims of domestic violence to ‘solve their problems within the family’ rather than bringing criminal charges. If legal action is pursued it is often civil rather than criminal action. The combination of societal and cultural attitudes, and the lack of availability of state protection, means women may not seek assistance unless the situation is life threatening, if at all.
1.7     Shelters might be provided by the Government or NGOs. In-country sources generally agreed that shelters are safe and clean and have adequate (though perhaps basic) food and hygiene facilities. All sources consulted by DFAT agreed that availability is a problem, with many services being at or beyond capacity. Stays are limited to six months with possible extensions. After six months, an assessment is made, and women might be returned to their community or might go elsewhere to engage in an economic activity for which they have trained in the shelter. Some women receive vocational training in shelters or have access to referral services (such as medical or legal services), but these services are not available to all victims. Women outside cities may be far away from shelters, which acts as a practical barrier to accessing services.
1.8     DFAT understands that the vast majority of women experiencing domestic violence do not access shelters or other help. Some women access services outside of shelters. Grassroots services that provide information and training, referrals and other informal support also exist including in areas where shelters are not available. Domestic violence hotlines run by CSOs in partnership with Government are also available. These services reported receiving a very high number of calls during the COVID-19 pandemic and associated lockdowns. Women might not know about services, especially in rural areas, and services must balance confidentiality to protect residents and availability for women in need.
1.9     In-country sources told DFAT mixed things about authorities’ responses to domestic violence. Domestic violence claims are often legally pursued as civil rather than criminal matters. Sources told DFAT that women who are ‘brave enough’ to contact authorities might be ignored or receive cursory and ineffective help, such as police telling a perpetrator not to ‘hit so hard’. Local authorities might deny that domestic violence occurs despite evidence to the contrary. Police might not understand legislation or policies or also be subject to traditional thinking that sees victims of domestic violence as ‘bad wives. A common theme mentioned by in-country sources was that police responses are mixed – sometimes they will attend and arrest perpetrators, other times they will be dismissive.
1.10    Relocation may be difficult or impossible. In-country sources point to barriers to relocation such as economic issues (the inability to rent a property alone because of lack of funds or lack of properties for single people) or difficulties in relocating children, along with the stigma and cultural attitudes mentioned above. This, in practice, means that many women cannot or will not relocate.
1.11    In-country sources told DFAT that escaping domestic violence is a push factor in external migration. DFAT assesses that women experiencing domestic violence have access to support services but cultural and structural problems such as poverty and inability to escape economic abuse create barriers to accessing those services.
Single and divorced women
1.12    Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.
1.13    In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.
1.14    Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.
1.15    Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.
1.16    DFAT assesses that single women and divorcees do not face official discrimination but do face a moderate risk of societal discrimination.
Citizen Identification Card (CIC)
1.17    Citizens are required to have a Citizen Identity Card (CIC). Cards have a nine or 12-digit number and may have a barcode or fingerprint. Twelve-digit numbers were introduced in 2012 and barcodes were added in 2016. They are being replaced progressively by chip-based cards, which contain information on 20 different fields including tax and insurance. This information is kept on a national database, which was launched in February 2021. Cards are issued at age 14 and renewed at ages 25, 40 and 60. CICs are not issued by Vietnamese embassies and consulates abroad. CICs have long periods before renewal is required; frequent trips back to Vietnam to obtain a new card are unnecessary.
)hộ khẩuHousehold registration books (
1.18    Hộ khẩu is household registration. DFAT understands that physical hộ khẩu books are no longer issued and have been replaced by information held in a national database that is linked to a person’s CIC. DFAT understands that, although the books are no longer issued, they are still in use by some. Hộ khẩu are not issued by Vietnamese embassies and consulates abroad but registration of residence is possible at police stations on arrival.
TREATMENT OF RETURNEES
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel and is sometimes used against the families of persons of interest.
5.26      Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27      Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases, different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
Conditions for returnees
5.29      Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three- and 20-years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed Conditions for returnees
5.29      Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three- and 20-years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30      In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31      DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32      Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33      Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34      Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35      DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the
Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.
Findings and reasons

The Tribunal notes that apart from the provision of his Vietnamese passport and the Vietnamese passport of each of his parents, the applicant has not provided either the Department or the Tribunal with any evidence in support of his protection claims.
Based on the applicant’s Vietnamese passport, the Tribunal accepts that the applicant is a citizen of Vietnam, and his identity is as he claims to be. The Tribunal accepts that Vietnam is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
The Tribunal notes that it has no current or up-to-date information about the applicant’s personal circumstances, including the state of his parents’ relationship, his care arrangements, where he is currently living and his general welfare. In making its decision, the Tribunal has considered the claims made by the applicant in his protection visa application and the available country information.
Given his age, the Tribunal accepts that the applicant is currently likely to still be in the care of one or both of his parents.
The Tribunal has considered the applicant’s protection claims in respect of which it makes the following findings:
·It accepts that he was born in Australia and has been raised in this country. It further accepts that he is unlikely to be unfamiliar with Vietnam as he has never been there.
·There is no evidence before the Tribunal to support the claim that he cannot return to Vietnam because his parents are unable to return to Vietnam.
·There is no evidence before the Tribunal to suggest that the applicant’s parents are currently separated, and his mother is his care giver.
·Although the applicant has not been to Vietnam, he does speak Vietnamese and his parents and sisters are Vietnamese citizens. The Tribunal accepts that although the applicant may find some difficulties in relocating to Vietnam, it does not accept that the evidence before it shows that he would struggle if he returned to Vietnam.
·On the basis of the country information, the Tribunal is satisfied that if the applicant returns to Vietnam, he will be eligible for a CIC when he attains the age of 14 years and if his mother accompanies him, she will be in a position to obtain the required household registration.
·Although his mother may have lost his Vietnamese identity and household registration documents, these may be further obtained if the applicant returns to Vietnam.
·There is no evidence before the Tribunal to support the applicant’s assertion that he will have no home if he returns to Vietnam.
·Country information suggests that failed asylum seekers are not generally stigmatized in Vietnam and the applicant has provided no evidence to support his claim that he fears for his safety if he returns to Vietnam. The Tribunal is therefore not satisfied that as a failed asylum seeker, he will suffer harm if he returns to Vietnam.
·The applicant has claimed in his protection visa application that he is a citizen of Vietnam and has provided his Vietnamese passport to the Department. The Tribunal is therefore not satisfied that the applicant has no Vietnamese identity and will considered stateless by Vietnamese authorities. The Tribunal further considers there is no evidence before it which suggests that government and private organizations will not provide services to him if he returns to Vietnam.
The Tribunal notes that country information shows that although discrimination against women is banned by the Vietnam Constitution, traditional views about family disadvantage women and societal discrimination against single and divorced women (and particularly single women) exists.
Country information further indicates that single women come under considerable pressure to marry and that the stigma against them can cause difficulties in them securing appropriate rental accommodation and employment.
However, the Tribunal accepts that DFAT assesses that although single women and divorcees do not face official discrimination, they do face a moderate risk of societal discrimination.
Although the Tribunal accepts that if the applicant returns to Vietnam with his mother, she may suffer some societal discrimination as a separated or divorced woman, this is a moderate risk and there is no evidence before the Tribunal which indicates that the applicant and his mother will be unable to establish themselves in Vietnam and secure appropriate accommodation, schooling and employment.
Having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that the applicant fears being persecuted for one or more of the five reasons mentioned in s 5J(1)(a), and that there is a real chance that the applicant will suffer persecution for one or more of the five reasons mentioned in s 5J(1) if he were to return to Vietnam, now or in the foreseeable future.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
The applicant claims that he satisfies the requirements under s 36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm for the reasons detailed in his application for a protection visa as expressed above.
In MIAC v SZQRB[3], the Full Federal Court held 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. It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in Vietnam by reason of him failing to complete his compulsory military service, of no longer being a Vietnamese citizen, of being asked for money and being arrested by the authorities if he returns to Vietnam, of his parents being unable to protect him because they are no longer government officials and him being arrested on his return to Vietnam because he failed to complete his military service and he would be questioned or detained as a failed asylum seeker.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.
At no stage did the applicant in his application or to the delegate or Tribunal advance any claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circusmtnces, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk she will suffer significant harm as required by s 36(2)(aa).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Based on the above findings (both individually and cumulatively) the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Mendes Da Costa
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.
…

[2023] AATA 4536

25 October 2023

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