2017663 (Refugee)

2017663 (Refugee) [2023] AATA 4029 (24 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Beatriz Stotz
CASE NUMBER:  2017663
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:24 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 August 2023 at 1:20pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Roman Catholic – participation in prayer meetings/demonstrations – threatened and assaulted by authorities – political opinion – parents’ participation in Formosa protests – assaulted and subject to continuing surveillance – returned failed asylum seeker – unlawful maritime departure and entry – understated age on arrival – participation in hunger strike and protests in Australia – vague, inconsistent and irreconcilable claims and evidence – low-level church membership accepted – country information – low risk of official harassment – wife’s separate protection application in progress – separation from wife and children not systematic and discriminatory – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(c), (5), 36(2)(a), (aa), 46A, 65, 195A, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 November 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in the vicinity of [Location] [in] May 2013. On 7 September 2014 he was granted a visa under s 195A and on 18 September 2014 was granted a temporary humanitarian stay visa and was released from detention.
On 10 February 2016, the Minister lifted the bar under s 46A and on 16 February 2016 the applicant was granted a bridging visa.
On 13 September 2017, the applicant made an application for a safe haven enterprise visa (SHEV) and on 19 June 2020, this application was found to be invalid.
Following Ministerial intervention, the bar was lifted for the applicant to submit a further visa application. The applicant made a further SHEV application on 25 July 2020.
On 12 November 2020, a delegate of the Department found that the applicant was not owed protection.
The applicant applied to this Tribunal on 9 December 2020 for a review of the Department’s decision.
Claims and Evidence
Evidence before the Department
The applicant participated in an arrival interview with the Department on 28 June 2013 and the Tribunal has had access to the notes and recording of that interview. He has provided to the Department identity documents including the original and translation of a family book, a Victorian birth certificate for his [child] which states he was born in Nghe An, Vietnam, his marriage certificate, and identity documents for his wife.
In October 2020, the applicant’s representative provided photos to the Department showing people outside a church and appearing to be at a demonstration and a translated letter stating it is prepared by the applicant’s parents’ parish priest.
The applicant claims to have been born in [Town], Quynh Luu district, Nghe An Province, Vietnam, and to be of the Kinh ethnic group and of Catholic faith. He claims to have been married in [Year] in Australia. He states that his parents and a sister and brother are in Vietnam, one brother is in Australia and one brother is in [Country]. He states he also has a cousin and uncle in Australia. He states that he lived at the one address in Vietnam from [Year 1] until 2014, when he departed Vietnam for Australia.
The applicant states that he left Vietnam by sea illegally and therefore did not have a travel document.
The Tribunal noted that the same set of claims were raised in each SHEV application. These were as follows (subheadings and paragraph numbering deleted):
I am Vietnamese (ethnicity Kinh) and a Catholic.
I was born in [Village], [Town], Quynh Luu, Nghe An and grew up with my family and siblings
I write to provide the Australian Immigration Department with the reasons why I had to leave Vietnam and cannot return. This report covers the developments and facts of what had happened to me and my family before I left Vietnam, to the present day.
In July 2012, the priest in charge of our parish urged all practitioners in our area to go to the [Location] area to pray for Catholic followers in that parish because the government had assaulted them, confiscated their land, damaged and destroyed their p[r]ayer hall together with the statues of Christ and Mother Mary.
We went to [Location] to pray as requested by our parish’s priest. On our trip back home we were summonsed by the local authorities who questioned us about the above matter and said we would be beaten up if we again went there to pray.
We are Catholics, and therefore our greatest wish is to have freedom to pray and to worship Christ and Mother Mary. The government’s prohibition of Catholics like us from making pilgrimage and praying caused myself and my parents a great deal of sadness and confusion.
We knew that being Catholics we were discriminated by the government, the rights of Catholics in the society were less respected by those of the non-Catholics. We did not have freedom of religion. Our human rights were not guaranteed and therefore we had to leave Vietnam in search of freedom of religion and human rights. Below are some concrete examples:
A. Before I and my brother left Vietnam, we received papers asking us for selection to join the military. But when we disclosed that we were Catholics they replied that Catholics could not join the military.
B. We felt that they despised Catholics. When still at high school, scholarships were rarely awarded to Catholics.
C. We also could not apply to join the army or police for employment because we were Catholics. If we wanted to be employed by the army or police we needed to join the Communist Party first, but the Communist Party discriminates against Catholics resulting in no Catholics being accepted into the Party. And for us Catholics, we cannot renounce our faith in order to join the Party.
Up to the present time (4 years after I and my brother left Vietnam), the local authority still comes to our home to ask for the whereabouts of myself and my brothers. They say to my family if we make contact, my family must tell us return straightaway and report to the local authority. Therefore, we are certain that they are still keeping us under surveillance.
Of special concern is what has been happening in the parish of [Village] where my parents are living. The environment disaster caused by the Formosa steel making had polluted the entire coast and the surrounding sea, directly affecting the livelihood of all people living in this area, including my parents. Therefore, the parish priest, [Father A], in accordance with the wish of their parishioners, protested against the Formosa Steel plants, which had discharged toxic waste causing pollution to the environment. [Father A] and the parishioners held a peaceful demonstration in search of justice and compensation for those affected. Those participating in the demonstration, which included my father [Mr B], Head of the parish’s administrative committee, and my mother [Ms C], lay theologian, were savagely beaten up by the government and their armed forces. Many demonstrators suffered serious injuries and had to be admitted to hospital. Subsequently, there were more demonstrations, which were suppressed even more brutally. Our parish priest was injured, bleeding from his mouth. And the government tried to drive a wedge between Catholics and non-Catholics to destroy unity between the 2 groups.
Since these events, my parents could not go out to sea to fish nor could they participate in any social activities. Especially because my parents hold senior positions in the parish, they have been closely watched and monitored daily by the government.
We want to be treated fairly, like everyone else. When the Australian government granted us temporary permission to stay, we felt that we have been well-treated and that we received the rights that humans need, such as freedom of religion and human rights which, in Vietnam, were denied to us. Because of this, many times we have participated in demonstrations organised by [Organisation name 1] to call for freedom of expression and human rights for the people of Vietnam, especially for the Catholics in my country where they have been affected by the Formosa Steel plant and oppressed by the local authorities, such as my parents.
After coming to Australia, I had the opportunity to participate in many activities organised by [Organisation name 2]. I was assisted by the Community volunteers to learn more about the situation of my country. I understand better the nature of the dictatorial single Party and I hate the Communist regime. I have participated in a number of demonstrations to protest against the wrongdoings of the Vietnamese government such as public demonstration at [Venue] in regards human’s right and the environmental disaster in Vietnam and the effects it will have in Australia and the world [in] May 2017.
I love my country therefore I hate the communist regime which has abandoned us to express our love for the country by protesting against the wrongdoings of the government. If I wished to express my love for the country, or express my own views on the negative aspects of what happens in Vietnam, I would immediately be arrested.
On [Date] I married [Ms D]. She is in Australia on a student visa and we had a [child] on [Date]. I have great fear that if returned my child will not be safe in Vietnam especially since [s/he] will grow up here and only know of how life is here. [S/he] would be a free thinker because [s/he] grew up in a free country. This would be dangerous for [her/him] and would cause great hardship.
I hold great fear of being returned to Vietnam as I know I will be arrested and imprisoned there. My family is in the black list of the Vietnamese government as reactionaries. In Australia I have participated in many anti-Communist demonstrations organised by [Organisation name 3]. At these demonstrations I have held the flag of the Republic of Vietnam (South Vietnam) and shouted anti-Communist slogans. I am certain that if I am returned to Vietnam the Vietnamese government will summons me to answer for my activities in Australia and they will put me in prison, where we will be beaten up. And I will be put in prison for the crime of escape from the country and demonstrating against the Communist regime, of being a traitor to the nation.
Even if the government of Vietnam promises not to imprison us after we are returned, those promises will not be honoured and there can be no guarantee. In Vietnam, there is a popular saying “Don’t listen to what the Communist say. Instead, look at what the Communists do”.
If the Australian government return us to Vietnam at this point in time it would be very dangerous for us. We would certainly be summonsed by the Vietnamese government to answers many questions and we will be beaten up regardless of the rights or wrongs, or even be imprisoned for the reason that we escaped from the country and for participating in demonstrations against the traitorous Communist regime who have sold out our country.
Even if the government of Vietnam promises not to imprison us, once we return there is no guarantee that those promises would be carried out. And some personal information of a number of refugees had been leaked while we were in detention camp. I do not know if I am amongst those affected, and when I was still in the camp, the Immigration Department allowed the Vietnamese A 18 Public Security Police to enter the camp and take several people back to Vietnam, and at present those people are still in jail.
At that point in time, we were so frightened and worried, we even went on a hunger strike to protest against the Immigration Department’s permission for the A 18 Public Security Police to arrest people unlawfully. Therefore, right now, we are very worried and frightened and if we are put into the Communist jails, charged with the crime of anti-state activities against the Communist government of Vietnam, our lives are seriously at risk, as many people have been beaten to death when held in the Vietnamese Communist jails.
I have received information from different sources about a lot of suspicious deaths of people in custody in recent years. For example the sudden deaths of NGUYEN HUU TAN 38 years old and TU NGOC THACH grade 9 in police’s custody. I am fearful that the similar situation would apply to if I had to come back Viet Nam. Information from DFAT Country information Report Vietnam revealed that there were at least 2,812 deaths of people in custody between 1 July 2011 and 30 June 2016. It is also in this report the US Department of State report of suspicious deaths in custody incidents for 2016. In those cases, there are evidence of victim’s injuries leading to the conclusion that they were inflicted by police officials while in custody. This continues to this day and I am scared I will be amongst this group if I am returned to Vietnam.
Another reason that has made be fearful to be returned to Vietnam is that a number of basic rights of the Vietnamese people are not implemented. There is an absence of separation between the executive and the judiciary therefore this limits the ability of judicial authorities to act with independence. If I had to return to Vietnam my basic rights such as having legal representation for my court case of “opposing the Communist regime or being a traitor to the nation” will not be enforced in practice.
In Vietnam the police require citizens to register when staying overnight in a location outside of their own homes. Moving without formal approval from the authorities can restrict access to legal residence permits, public education and health care benefits. Moreover, my parents are considered as undesirable and a threat to public security, therefore we will be a target of search by the government authorities if we internally relocate.
Before fleeing from Vietnam, I was told by my parents to declare my age as under 18. At the time, I lived with my parents and totally depended on them, both materially and emotionally, so I had to follow their instructions. When I first set foot in Australia, my mind was not truly settled as I was always confused and frightened, so I followed whatever my parents said. Hence we provided inaccurate information about my age.
Right now, I regret that I had not been truthful about my age. After living in Australia for a time, I have learnt many Australian values, which include honesty and the courage to admit previous wrong doings. I have recognised the kindness of the Australian government and I feel that my person has been treated with respect. Because of this, I wish to live in a way that is worthy of the manner that we’ve been treated. I am now declaring my true date of birth in this application.
The applicant participated in an interview with the Department on 12 October 2020 and the Tribunal had access to a recording of that interview.
A delegate of the Department found that the applicant had claimed to have been born in [Year 2] when he first arrived in Australia but had subsequently claimed he was born in [Year 1]. The delegate noted that when the applicant had applied for his [child]’s birth certificate and his driver’s licence, he had continued to maintain he as born in [Year 2]. The delegate did not accept the applicant attended a protest in [Location]`, that the Vietnamese authorities came looking for him or threatened him, or that he was refused admission to the military, the army or police because of his religion, or faced other adverse attention in Vietnam because of his religion, including having been refused a scholarship. The delegate accepted the applicant’s parents are practicing Catholics but did not accept they were monitored, were activists or that his father was threatened or assaulted or that his parents were beaten after attending a Formosa protest. The delegate did not accept the applicant joined any protests in Australia or that he was interviewed by Vietnamese officials while in detention. The delegate accepted that the applicant’s details were unintentionally released by the Department in 2014 and accepted it possible that the Vietnamese authorities may have accessed this information. The delegate had regard to relevant country information and found from this that the applicant does not face serious harm in Vietnam because of his religion, because of illegally departing Vietnam, because of the data breach in 2014, or because of a lack of human rights, separation of governmental powers or the judiciary in Vietnam not being impartial. The delegate considered all of the applicant’s circumstances, including his concerns about finding employment and a lack of social welfare in Vietnam, and was not satisfied he faces a real risk of significant harm in Vietnam and found he was not owed complementary protection.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 7 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant’s representative appeared at the hearing with the applicant.
Following the hearing, the applicant’s representative provided written submissions to the Tribunal, submitting that (in summary):
·The applicant fears persecution for reasons of his religion as a Catholic; political opinion, as an individual opposed to the Vietnamese regime and an individual particularly opposed to the Vietnamese national and local authorities monitoring and persecuting Catholics; his imputed political opinion, in that if he is removed to Vietnam he can be suspected or accused of supporting or engaging in activities against the regime or associating with Vietnamese people in Australia who oppose the regime, and the perception will be heightened as he has spent time overseas seeking protection in Australia and left the country illegally and is associated with asylum seekers who oppose the regime; and his membership of the particular social groups of members of a family known to support or be involved in religious freedom advocacy and activism, and involuntarily returned Catholic failed asylum seekers.
·When considered cumulatively, the applicant will face greater risk as a person who left the country illegally, has sought asylum in Australia, is a Catholic, is opposed to the Vietnamese regime, and is a member of a family, church and location in Vietnam perceived by authorities to be involved in religious freedom advocacy, than would be the case for any of the characteristics in isolation.
·In the alternative, the applicant is owed complementary protection. He fears the Vietnamese state will harm him and authorities would be unwilling to protect him. There is no agency within Vietnam that can protect the applicant from the state and its agents.
·The applicant has a subjective fear of harm, based on his experiences leaving Vietnam because he could not freely practice his religion and express his political opinion. He left illegally on a boat with other asylum seekers to seek protection in Australia.
·The applicant’s personal characteristics would cause him to be of interest to the authorities as someone suspected of opposing the government and associating with people who engage in religious freedom advocacy. His circumstances, when considered as a whole, would expose him to a reasonable possibility of facing persecution.
·The applicant is from [Village], known or perceived by the authorities to be engaged in religious freedom advocacy and activism, including protesting over land issues including the ‘Formosa’ protests. The applicant is not free to practice his religion in Vietnam without risk of persecution. Churches are monitored and activities are limited, and the church and its members face land confiscation, beatings and monitoring. Country information in the most recent DFAT report for Vietnam supports the applicant’s claims. The government’s actions violate Article 18 of the ICCPR and other human rights instruments. The applicant should not be required to modify his conduct or not express his religious views or political opinion. Further, the UNHCR Handbook notes that when considered the risk of persecution, considerations need not necessarily be based on the applicant’s own personal experience.
·When considering the applicant’s political opinion, it is important to distinguish between his participation in political activities and his political opinion and each can put the applicant at risk. The applicant does not have the freedom to express his political opinion and his fear is well-founded. The Vietnamese authorities will need to establish not just what the applicant’s political profile was in Vietnam, but what it is now.
·When considering future risk, it is important to consider the government’s engagement in misinformation, denial of human rights abuses, mistreatment committed by government authorities, the unwillingness of the government to be accountable for human rights violations, and independent country information relating to human rights abuses of those detained and questioned by the authorities. There is no ongoing monitoring of Catholic failed asylum seekers who are returned to Vietnam.
·The lack of country information about involuntarily returned Catholic failed asylum seekers does not logically lead to the conclusion that there is no risk of persecution and may be due to the lack of monitoring of the unwillingness of the government to provide information about human rights abuses.
·The applicant cannot be expected to conceal his religion, political opinion, lie to the authorities and any assessment of risk cannot assume that the applicant will not express his political opinion or religious views to authorities.
·The applicant fears arbitrary detention, torture, physical harm and deprivation of his liberty which amount to persecution.
·Consideration must be given to ongoing screening of the population; the risk of harm where there is no accountability or effective protection; the policy of the authorities to screen and monitor the population; the risk of harm, including psychological harm, during interrogation by authorities; the possibility that the authorities may have adverse information about the applicant’s illegal departure by boat; and the changed profile of the applicant which now includes association with refugees and people who have fled because of their opposition to the government. There is a real chance the authorities will interrogate the applicant upon return and an assessment of harm needs to include the treatment of the applicant upon return by the authorities. An important consideration is whether arbitrary detention will expose the applicant to harm, taking into account country information regarding human rights abuses by the authorities and lack of state protection.
·The representative submitted that more information is needed about the Department’s data breach and referred incorrectly to the Iranian authorities. The representative submitted that it is not possible to make a finding that the data breach will not put at the applicant at risk.
·The authorities would be unwilling to protect the applicant and internal relocation is neither relevant nor reasonable.
·In the alternate, the applicant is owed complementary protection as he fears arbitrary deprivation of his life, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment, given his particular circumstances. The risk of arbitrary detention exposes him to a ‘real chance of serious harm amounting to persecution’. The latest DFAT report states that arbitrary detention does occur and that the applicant faces penalties for leaving Vietnam illegally. Lack of awareness by DFAT about prison sentences being imposed does not mean that they are not being given. The DFAT report further indicates that the applicant will be interrogated and detained upon return and the applicant’s profile puts him at risk during any interrogation.

Following the hearing, the Tribunal wrote to the applicant under s 424A, setting out its concerns about the evidence given by the applicant. The details of this letter, and the applicant’s response to the s 424A letter, are discussed further below.
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.
Assessment, Reasons and Findings
The issue in this case is whether the applicant meets any of the alternate criterion in s 36(2)(a), (aa), (b) or (c), that is, whether he is a ‘refugee’ or is owed complementary protection, or is a member of the same family unit of such an individual. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant arrived in Australia by boat without any identification documents and subsequently provided to the Department a family book issued in Vietnam. He has consistently claimed to be a Vietnamese citizen and has been interviewed by the Department and by the Tribunal with the assistance of a Vietnamese interpreter. The Department has accepted, and the Tribunal also accepts, that the applicant is a citizen of Vietnam. The Tribunal has assessed the claims of the applicant against Vietnam as his country of nationality.
The applicant’s background
The applicant claims to have been born and lived in [Town] village in Nghe An Province and the Tribunal accepted this evidence. The applicant gave evidence at the hearing that his parents remain living in the same house, that his [brother] is with him in Australia, that his [sister] lives in Ho Chi Minh City with her husband, and that he has one brother living with his parents and one brother living in [Country]. He gave evidence that his parents were both born in the village in which they are still living and that his father was previously a fisherman but no longer works and is being supported by the children of the family.
The applicant gave evidence to the Tribunal that he was married in Australia to another Vietnamese national who has applied for protection but whose protection claim has not yet been determined by the Department. He told the Tribunal that his wife was born in [Location], Ba Ria-Vung Tau province. He gave evidence that he and his wife have two [children], born in [Year] and in [Year].
The applicant told the Tribunal that he is currently working as [an Occupation] and that he has worked in Australia consistently since being released from immigration detention. He gave evidence of having left school before departing Vietnam and having been about to finish ‘Year 11 or 12’ when he left. He told the Tribunal that he had not worked in Vietnam and that his parents had supported him.
The applicant told the Tribunal that his parents had made arrangements for he and his [brother] to leave Vietnam and that they left Vietnam by boat along with his cousin and uncle. He stated that he and his brother both gave incorrect years of birth after being told to say this by his parents.
The information given by the applicant about his background was given clearly and credibility at the hearing and is consistent with his written claims and with the information he provided to the Department at interview. The Tribunal accepts the above information. The Tribunal accepts that the applicant was still of young age (albeit not underage) when he arrived in Vietnam and accepts as reasonable that he may have followed his parents’ instructions about what to tell Australian authorities about his age. The Tribunal makes no adverse credibility findings based on the applicant’s previous maintenance of an incorrect age to the Department.
Claims relating to religion and claimed incident at [Location]
The applicant has consistently claimed to be a practicing Catholic. He provided the Department photos which show his family’s involvement with the Catholic Church in Vietnam and, based on the information provided in his interview about the practice of his faith, the delegate has accepted he is of Catholic faith. The Tribunal similarly accepts the applicant identifies and has practiced as a Catholic in Vietnam. The Tribunal accepts the applicant’s parents are of Catholic faith, that he was baptised at one month of age and that he attended church on a regular basis in his village. The Tribunal accepts that the applicant has continued to attend Catholic church in Australia, on the basis that he was able to give credible evidence about the church he is currently attending and the services that the church is providing. The Tribunal accepts the applicant’s two children have been baptised as Catholics at a young age.
However, while the Tribunal accepts the applicant practiced his Catholic faith in Vietnam, it does not accept his claimed experiences at [Location], or his claims as to the reasons he fears harm upon return to Vietnam, for the following reasons.
Firstly, the applicant has given inconsistent and irreconcilable evidence about the claimed event at [Location].
In his written statement, provided to the Department in support of his SHEV applications, the applicant claimed that he had gone to [Location] to pray and that, on his trip back home, a group of men stopped and threatened him. The applicant claimed that after he got home, he was summoned by local authorities who questioned him about the prayer meeting and who threatened to beat him up if he went again to pray.
In contrast, at the interview he attended with the Department delegate on 12 October 2020, the applicant claimed that in July 2012, local authorities had assaulted his local priest and many others, including the applicant. The applicant then claimed that people had tried to assault him, but he had run away. The applicant then told the interviewer that, because he was badly assaulted, he was not confident to return to [Location].
Also in contrast to the above information, at the Tribunal hearing the applicant gave evidence to the Tribunal that the incident at [Location] occurred a couple of months before he had left Vietnam. He gave evidence that on the way home, the local government had stopped him and had threatened him to stop going to pray and that he had seen people hit. The applicant gave evidence that neither he nor his family members were hit. When asked whether anything else had happened before he left Vietnam, the applicant then spoke to the Tribunal about a priest from [Location] relocating to his local parish.
Following the hearing, the Tribunal wrote to the applicant under s 424A about the inconsistencies he had given about his claimed experiences at a prayer meeting in [Location]. The Tribunal’s correspondence noted that these discrepancies may lead the Tribunal to doubt the credibility of the applicant’s evidence, may cause the Tribunal to not accept that the applicant attended a prayer or a demonstration in [Location], or that he was stopped and threatened by anyone on the way home, or that local authorities questioned the applicant and threatened to beat him up, or that the applicant or anyone else was assaulted in [Location] or on the way home from [Location] or that the local government threatened the applicant in order to stop him from attending [Location]. The Tribunal’s correspondence noted that the discrepancies may cause the Tribunal to not accept that the authorities attended the applicant’s home either before or after he left Vietnam looking for the applicant and his [brother].
The applicant was invited to respond to the Tribunal’s correspondence. The applicant providing a response, stating that all of the people who participated were at risk of being assaulted; he was not assaulted and his parents were not assaulted; some people were assaulted because they did not manage to run away; and that the authorities came to his parents’ house and warned the family not to be involved in these activities and protests.
The response provided by the applicant did not explain why the applicant had given different evidence at different points in time about his experiences at [Location]. The Tribunal is particularly concerned about the applicant’s claims to have been assaulted by local authorities when interviewed by the Department, which is in contrast to his other evidence that this did not occur. The differences in the details provided by the applicant about his claimed experiences causes doubt for the Tribunal that the applicant left Vietnam for the reasons claimed or that he was involved in an incident on the way home from [Location] or at [Location] or that he came to the attention of Vietnamese authorities because of his religious practices in Vietnam.
Secondly, the applicant’s evidence about his claimed experiences as a Catholic in Vietnam were given in a vague manner. For example, when asked to describe his experiences in Vietnam arising from his religion, the applicant said that is a ‘very big question’ and that the ‘scope is wide’ and that if the Tribunal asked why he had left because of his religion, he ‘would say so and so’. When asked for details of his experiences because of his religion, the applicant claimed to have been not allowed to enrol in some classes at school. When asked for further details, the applicant said that there were ‘lots of other experiences’ because of his religion and went on to describe his parents’ participation in the Formosa protests. The applicant’s inability to provide any details or credible evidence of his experiences in Vietnam causes further doubt for the Tribunal that he experienced any adverse attention from authorities in Vietnam because of his religion.
Thirdly, the applicant’s claims about his family’s political activities in Vietnam as a result of their faith is inconsistent and causes further doubt about the credibility of the applicant’s claims.
In his statement dated 15 July 2020, the applicant claimed that his parents participated in a demonstration against the Formosa Steel disaster and that they were savagely beaten by the government and armed forces. The applicant claimed that, since then, his parents have been unable to fish, to participate in any social activities and have been closely watched and monitored daily by the government.
In contrast, at the Department interview on 12 October 2020, the applicant told the interviewer that his father attended a protest relating to Formosa Steel and the authorities sent someone to protestors’ homes to threaten and assault them. The applicant told the interviewer that his father was not directly threatened.
Also in contrast, at the Tribunal hearing, the applicant gave evidence that his parents had attended protests but that he did not know what year this had happened. The applicant gave evidence to the Tribunal that ‘people’ were beaten and jailed for attending the protests.
Following the hearing, the Tribunal wrote to the applicant under s 424A. The Tribunal’s correspondence noted that the inconsistencies in the applicant’s evidence were relevant because the inconsistencies in the evidence about which of the applicant’s parents had attended the Formosa protests and whether they were injured may cause the Tribunal to doubt the credibility of the applicant’s claims, may cause the Tribunal to not accept that the applicant’s parents participated in protests against Formosa Steel, or that they have faced adverse attention from the authorities because of their political activities, or that the applicant would face any interest from the authorities in Vietnam because of his parents’ political activities.
The applicant was invited to respond to this information and provided a response stating that both of his parents attended Formosa Steel protests and that they were not beaten but many were. The applicant stated that the authorities went to some of the protestors’ homes, including his parents, and threatened them. The applicant stated that his parents no longer fish and are fearful that they are being monitored by authorities.
In providing the s 424A response on behalf of the applicant, the applicant’s representative submitted that the protests had taken place in 2017 after the applicant left Vietnam; that the delegate has accepted that the applicant’s father may have attended one protest in 2016 relating to the Formosa incident; and that the applicant had provided photos evidencing his father’s participation in the protests and the Tribunal had not informed the applicant whether it accepted this evidence or not. The applicant’s representative submitted that the applicant’s parents were not ordinary church practitioners, but his mother has been a catechist and his father a member of the parish council and the applicant is a member of a family known to support religious freedom advocacy. Further, his parents support a priest involved in activism against the authorities.
The Tribunal has had careful regard to the evidence before it, including a photo provided by the applicant which he states evidences his father’s participation in a protest, and is prepared to accept that the applicant’s father participated in a protest in or around 2016. However, the Tribunal does not accept the applicant’s parents came to the attention of authorities because of any protest activity, on the basis that it does not accept the applicant’s evidence about his father’s experiences would vary so widely if his father was beaten as he claimed in his written statement. For the same reasons, the Tribunal does not accept the applicant’s parents are known to authorities for any activism against the authorities, or for the combined reasons of their religion and political opinion, or for their imputed political opinion. Nor does the Tribunal accept the applicant would be of interest to the authorities in Vietnam because of his parents’ political activities, or as a family member of a family known to support advocacy and activism.
Because of the above concerns, the Tribunal has not found the claims of the applicant to be credible and does not accept the applicant faced discrimination as a Catholic in Vietnam, either by being denied enrolment in school subjects or, as set out in his written claims, by being stopped from pilgrimage and prayer, denial of entry to government organisations or in any other aspects of his day to day life in Vietnam. The Tribunal does not accept the applicant’s parents were beaten by authorities for protest activity or that they are known to the authorities as activists. Also for the above reasons, while the Tribunal accepts the applicant may have travelled to [Location] on one occasion to pray, it does not accept that the applicant came to the attention of the authorities because of attending a prayer session at [Location]. It does not accept the applicant was stopped and threatened on the way home from [Location], or that the applicant was summonsed by loan authorities how questioned him and threatened to beat him, or that local authorities came to the applicant’s home after he left Vietnam to ask where he and his brother were, or that the applicant’s family were subject to monitoring or surveillance. The Tribunal does not accept the applicant’s parents were unable to fish or attend social activities, or that they have been watched and monitored by the government, or that the applicant would be subject to a targeted search by the authorities because his parents are considered undesirable or a threat to public security. The Tribunal does not accept that authorities came to the applicant’s home and warned his parents about any family member being involved in religious or political activity.
The Tribunal accepts that the applicant is a practicing Catholic and that he would continue to practice his religion, if he returns to Vietnam now or in the reasonably foreseeable future, through attendance at a church and by praying. The Tribunal summarised and discussed the following country information with the applicant at hearing and invited him to comment on the information.
In Vietnam, six per cent of the population identifies as of the Catholic faith. Registered religious groups worship with limited or no government interference, although those that attend unregistered groups may be pressured by the government to join registered groups. Treatment of unregistered groups varies depending on whether they are perceived to have political agendas and those in cities are less likely to experience official interference.[1] Many incidents relate to religious groups that are politically active in local land or environmental disputes and it can be difficult to distinguish between religious and political claims. Several high profile religious figures who have advocated for religious freedom have been imprisoned, although such cases are fewer in recent years. It is possible that those who have been arrested and imprisoned in the past may continue to be under surveillance by authorities or summoned for interrogation. DFAT understands that this is limited to questioning and does not include violence.[2]
[1] DFAT Country Information Report Vietnam, 11 January 2022, 3.13 & 3.15.
[2] DFAT Country Information Report Vietnam, 11 January 2022, 3.18 – 3.19.

DFAT assesses that adherents of officially recognised religious groups are generally able to practice their faith with minimal interference from authorities, although the situation differs from place to place. Individuals in large cities are particularly free to practice. Adherents from unregistered groups generally face more restrictions but these vary depending on religion, ethnicity and any perceived or actual involvement in religious freedom advocacy or political activism.[3]
[3] DFAT Country Information Report Vietnam, 11 January 2022, 3.21.
Catholics in Vietnam reside in most areas, but the highest concentration is in central Vietnam provinces of Nghe An, Ha Tinh and Quang Binh. In-country sources have reported to DFAT that Catholics are generally able to practice freely at registered churches, particularly in areas with larger Catholic populations. Most Catholics worship in churches and some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches.[4]
[4] DFAT Country Information Report Vietnam, 11 January 2022, 3.22 – 3.24.
Catholic political movements have attracted negative attention from authorities and the distinction between faith and politics can be difficult to draw, for example, when Catholics are involved in political, human rights or environmental movements. Priests involved in such movements may be restricted from public ministry or given a far-away parish assignment.[5]
[5] DFAT Country Information Report Vietnam, 11 January 2022, 3.26.
According to local sources, Catholics generally do not experience societal discrimination and, while such discrimination cannot be ruled out, in-country sources indicate that there is no pattern of such discrimination. DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In general, Catholics are able to worship freely and receive sacraments. Some Catholics in remote areas have trouble accessing a priest. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[6]
[6] DFAT Country Information Report Vietnam, 11 January 2022, 3.30 – 3.31.
After summarising and discussing the above information with the applicant at hearing, the Tribunal observed that the information suggested that the applicant would not face serious harm or significant harm in Vietnam because of his religious practice. The applicant stated in response that he thinks the government controls and edits information for people and that individuals such as priests in his local area are victims of oppression.
The Tribunal finds that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant would return to reside in Nghe An province, where he grew up and where his parents continue to reside. The Tribunal finds from the country information discussed with the applicant at hearing that the area the applicant would return to is an area with a larger Catholic population, who are generally able to practice their religion freely. The Tribunal finds that the applicant would continue to practice his religion in Vietnam in the form of praying and attending a registered church, on the basis that this is the manner in which he has practiced his religion on a longer-term basis. The Tribunal finds that the applicant would not practice his religion in such as way that he would be perceived to be involved in political or human rights movements, as it does not accept the claimed events at [Location] occurred or that the applicant’s parents are perceived by authorities to be politically active. The Tribunal finds that there is not a real chance the applicant faces serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because of his religion.
Claims relating to activities Australia
Given the claims raised in his SHEV application, the applicant was asked at the hearing about any political activity he had been involved in in Australia. His evidence to the Tribunal was that he didn’t dare attend protests in Australia because, if he has to return to Vietnam, he is afraid that the government would be aware that he had protested. When asked directly by the Tribunal, he gave evidence that he had not attended any protests in Australia. He told the Tribunal that whenever he had seen a protest, he would observe as a ‘passer by’ but that he was not actively ‘recruited’ to join the protest.
Given this evidence, the Tribunal wrote to the applicant under s 424A after the hearing, noting the above evidence and that, in contrast, in his statement dated 15 July 2020, the applicant claimed that he had participated in demonstrations many times organised by [Organisation name 1] and had participated in many activities organised by [Organisation name 2]. The applicant had claimed in his statement to have participated in a number of demonstrations to protest against the wrongdoings of the Vietnamese government such as a public demonstration [in] May 2017. The applicant claimed to have participated in many anti-Communist demonstrations organised by [Organisation name 3] and at these demonstrations to have held the flag of the Republic of Vietnam and shouted anti-Communist slogans.
Also in contrast to the evidence given at hearing (and noted in the s 424A correspondence), at the Department interview on 12 October 2020, the applicant told the interviewer that he had joined a hunger strike while in detention and had joined demonstrations once or twice in 2014 or 2015 but had stopped and had undertaken no other political activities in Australia.
The Tribunal’s correspondence noted that the inconsistencies in the evidence the applicant had given about his participation in protest activity in Australia may cause the Tribunal to doubt the credibility of his claims, and may cause the Tribunal to not accept that the applicant has been politically active at all in Australia.
The applicant was invited to respond to this information and stated in his response to the Tribunal that there is a distinction between the protests he was involved in while in [Immigration Centre] and those he participated in in Melbourne. The applicant’s representative submitted that the applicant had joined a hunger strike while in detention which lasted a few days and that, as a result of the hunger strike undertaken by the applicant and other detainees, the Department stopped further access by Vietnamese authorities. The applicant believes the protest would have been seen by officials as a stance against Vietnamese authorities by asylum seekers who are opposed to the regime.
The applicant’s representative further submitted that the applicant had gone a few times to demonstrations organised by [Organisation name 2] but did not participate and watched the protests from the footpath. The applicant’s representative submitted that the applicant was afraid to join as the Vietnamese authorities monitor protests and could put his family at risk in Vietnam. The representative submitted that it is important to distinguish between the applicant’s participation in political activities, his political opinion, his association with people who oppose the regime and his association with people who engage in activities in Vietnam or Australia against the regime. The applicant associated in Vietnam with [Father A] and in Australia has associated with asylum seekers on the boat.
The applicant’s representative submitted that the risk to the applicant because of his association with asylum seekers and people opposed to the regime is added to by the data breach, as it is not known whether the data has been accessed by Vietnamese authorities. The representative submitted that the applicant’s data may be in a list of people found to be refugees because of their political opinion, or people who are of interest to authorities.
The Tribunal has carefully considered the explanations provided by and on behalf of the applicant, but does not accept that the applicant has been politically active in Australia. The Tribunal makes this finding on the basis that it is implausible that the applicant would describe only observing political protests to the Tribunal, if he had actively participated in demonstrations and held a flag and called out slogans, or if he had travelled to Canberra to protest in 2017 as he had claimed. The explanation provided for these discrepancies did not alleviate the concerns the Tribunal had about the applicant’s evidence. The Tribunal does not accept the applicant has been engaged at all in political issues since arriving in Australia, and, on this basis, finds that the applicant would not be politically active in Vietnam, not because of a fear of the consequences of this but because he has not engaged at all in political issues to do with Vietnam while living in Australia. The Tribunal finds there is not a real chance the applicant faces serious harm in Vietnam because of his political opinion or imputed political opinion.
The Tribunal accepts that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant would return to Vietnam as an individual who departed Vietnam illegally and as a returnee from Australia and a failed asylum seeker. The Tribunal accepts that the applicant’s details may have been released by the Department in or around 2014 and that, as a result of this, the Vietnamese authorities are likely to be aware that he has sought asylum in Australia.
The Tribunal discussed the following country information with the applicant at hearing and invited him to comment on the information.
The Penal Code prohibits ‘organising, coercing or instigating illegal emigration for the purpose of opposing the People’s Government’ and provides for penalties of between 3 and 20 years’ imprisonment for organisers and individual departees. DFAT states that it is not aware of any cases where the provisions have been used against failed asylum seekers returning from Australia. In-country sources have reported to DFAT that all individuals involved in people smuggling operations, either as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations and that some people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have used people smugglers face, at worst, an administrative fine and that this includes cases of multiple illegal departures.[7]
[7] DFAT Country Information Report Vietnam, 11 January 2022, 5.29 – 5.30.
DFAT further states that they understand that authorities occasionally question returnees from Australia upon their arrival in Vietnam and that the interview process generally takes between one and two hours, and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT states that it is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[8]
[8] DFAT Country Information Report Vietnam, 11 January 2022, 5.31.
The Tribunal discussed the above information and observed that, while it accepted the applicant may be questioned and fined, it may not find this amounts to serious harm or significant harm. The applicant stated in response that he knows he will be interrogated with questions and an immigration officer would not be able to distinguish whether he was part of the people smuggling group. There are many examples of people who are not guilty and that during interrogation they are subject to violence until they choose to plead guilty.
The Tribunal also discussed with the applicant that returnees, including failed asylum seekers, typically face a range of difficulties upon return, which include unemployment or under-employment, and challenges accessing social services, particularly where household registration has ceased. Many returnees have high levels of debt from funding their travel out of Vietnam, although indebtedness is reportedly lower among people from irregular migration hotspots such as Nghe An and Ha Tinh. Being a failed asylum seeker is not generally stigmatised and migration, particularly internal migration, has been a feature of Vietnamese lives for decades and is even encouraged by the government. 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 would be treated in accordance with their political activity and the laws related to illegal emigration might apply to them. However, this does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. DFAT states that this assessment applies to those who have sought asylum in Australia.[9]
[9] DFAT Country Information Report Vietnam, 11 January 2022, 5.32 – 5.35.
The Tribunal observed that this information suggested that the applicant would not face serious harm or significant harm in Vietnam due to his illegal departure from Vietnam or as a failed asylum seeker. The applicant stated that where he is from, there are very strong religious activities in the eyes of the government and Catholics are always opposing the government.
The Tribunal has found, for the reasons set out above, that the applicant did not come to the attention of the authorities before leaving Vietnam because of his religion and/or political opinion or imputed political opinion. The Tribunal is prepared to accept that the applicant’s details may have been included in the 2014 data breach and he may have participated in a hunger strike while in detention and that, as a result of this, the Vietnamese authorities may have become aware the applicant was in Australia and may infer that the applicant has sought protection in Australia. The Tribunal finds that the applicant does not have a profile with the authorities that would bring him to the particular attention of the authorities, but accepts that he may be questioned upon return to Vietnam and fined.
Having regard to country information discussed with the applicant at hearing, the Tribunal finds that the applicant is unlikely to be prosecuted under the Penal Code as a failed asylum seeker, but that he may be questioned and fined. The Tribunal finds that being questioned and fined does not amount to serious harm as defined in s 5J(5). He is unlikely to face stigma or other harm as a failed asylum seeker and is likely to be viewed by the government as a victim, not a criminal. The Tribunal is not satisfied that the applicant faces a real chance of serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, as a failed asylum seeker, because his information may have been part of the Department’s data breach in 2014, as a returnee from Australia or for all of these reasons.
Separation from wife and child
The Tribunal accepts the applicant would be separated from his partner and [children] if he returns to Vietnam. The Tribunal finds that any harm arising from this separation is due to the act of removal itself and that any harm experienced by the applicant arising from the separation does not involve systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal observed during the hearing that it may find that any separation of the applicant from his family members is not systematic and discriminatory conduct and the applicant stated in response that his fear of separation is not based on geographical distance, but is about him being possibly put in jail and no longer in contact with his family.
The Tribunal is not satisfied that any separation of the applicant from his family members constitutes systematic and discriminatory conduct as required by s 5J(4)(c) and finds that the applicant does not face a real chance of serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because he would be separated from family members who are residing in Australia.
The Tribunal has considered the cumulative claims of the applicant, but finds that he does not face a real chance of persecution for any reason.
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).
Complementary protection
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 has considered the claims of the applicant as an individual of Catholic faith, a returnee and failed asylum seeker from Australia and an individual who may be separated from his family if removed from Australia to Vietnam.
The Tribunal has accepted, for the reasons set out above, that the applicant may be detained and questioned by authorities upon return to Vietnam. The Tribunal finds that separation of the applicant from his family would be due to the act of removal itself, rather than a necessary and foreseeable consequence of the removal.
The Tribunal is not satisfied that, having regard to relevant country information as set out above and the personal circumstances of the applicant, the applicant faces a real risk or arbitrary deprivation of his life, that the death penalty will be caried out, that he will be subject to torture, that he will be subjected to cruel or inhuman treatment or punishment that is intentionally inflicted on him, or that he will be subjected to degrading treatment or punishment that is intentionally inflicted on him.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant gave evidence to the Tribunal at hearing that his wife is a Vietnamese national whose protection application has not yet been considered by the Department. The Tribunal accepts this evidence and finds that the applicant does not satisfy s 36(2) on the basis of 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).
Validity of the applications
The Tribunal notes that the Department considered the applicant’s first SHEV application invalid and invited the applicant to make a further SHEV application. The Tribunal is of the view that the first SHEV application was valid, on the basis that no refusal decision had been made at the time of the second SHEV application and both visa applications were for SHEVs. The Tribunal has proceeded to assess all of the claims raised by the applicant in both matters (which raise the same claims) and has not made a formal finding about invalidity of the second SHEV application as both delegate decisions are captured under a single Tribunal review number.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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 4029

24 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction