2100308 (Refugee)

2100308 (Refugee) [2023] AATA 1133 (31 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Duc-Dung Tran (MARN: 0319577)
CASE NUMBER:  2100308
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:31 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 January 2023 at 11:37am
CATCHWORDS
REFUGEE – protection visa – Vietnam – threats of harm by ex-husband’s family – failed asylum seeker – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
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 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 5 January 2021 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, arrived in Australia [in] April 2013. She applied for a Safe Haven Enterprise Visa on 19 June 2017 which was found by the Department to be invalid.
The applicant made a further application for a Safe Haven Enterprise Visa on 2 September 2020.
On 5 January 2021, a delegate of the Department refused to grant the visa on the basis that they were not satisfied the applicant is a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 13 December 2022 to give evidence and present arguments. The applicant’s representative did not attend the hearing. The Tribunal was assisted during the hearing by a Vietnamese interpreter.
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.
The most recent DFAT report for Vietnam was issued on 11 January 2022 and the relevant parts of this report are discussed further below.
CONSIDERATION OF Claims and evidence
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 she 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 has consistently claimed to be a citizen of Vietnam. She has provided to the Department a copy of a Vietnamese birth certificate and household registration booklet. She was interviewed at the Tribunal hearing using a Vietnamese interpreter. The Department has accepted, and the Tribunal also accepts, that the applicant is a Vietnamese citizen and has assessed her claims against Vietnam as her country of nationality.
The applicant’s background
The applicant was born in Nghi Xuan district, Ha Tinh province. She gave evidence at the hearing that both parents have passed away since she arrived in Australia and that she has [siblings] living in Nghi Xuan district and does not have any family members in Australia. The applicant gave evidence to the Tribunal that she was married at 21 years of age and lived in her husband’s parents’ home after her marriage in the same [district], a half hour walk away from her family home. She gave evidence that she has one son, born in [year], who is living in Vietnam with her parents-in-law. She gave evidence that her former husband passed away four to five years ago; the Tribunal noted that she had previously claimed he had passed away in 2015 and accepted her earlier claims as to the year of his passing.
The applicant gave evidence to the Tribunal that she left school in primary school and helped her parents in their [farm], and later worked selling food to school children. She gave evidence that in Australia she worked at a [processing] factory before moving to another position with a [company] five months ago so that her travel to work was reduced. She gave evidence that she has been living, since leaving immigration detention, with another Vietnamese national whose family live in the same district as her family. She gave evidence that her partner has two brothers and three sisters in Vietnam, that his wife left the family home seven to eight years ago, and that his mother and two daughters are living in the home he was residing in before he left Vietnam.
The applicant gave evidence that she travelled to Australia with four other people and that the trip to Australia was organised by her parents-in-law. She gave evidence that she travelled by plane from Vinh airport to Ho Chi Minh City using a passport in her own name and with her photo and correct date of birth, and that she used the same passport to travel by plane from Ho Chi Minh City to Indonesia. She gave evidence of having attended a passport office with her father-in-law to obtain the passport and described that she had thrown the passport and her identification document overboard while on the boat to Australia. She gave evidence that her parents-in-law had borrowed money from a bank for her travel to Australia and that the loan has been repaid since she has been living and working in Australia, including all interest owing on the loan.
The above information was given clearly and credibly and was consistent with information the applicant has previously given about her background, family and employment. The Tribunal accepts this information as correct.
Claims relating to husband
The applicant has consistently claimed to have been subject to family violence from her former husband and has claimed that this was the reason she left Vietnam in 2013. She described to the Tribunal the physical violence she had experienced from her husband from the time their son was three years of age and gave evidence that her parents-in-law were unable to intervene to assist her but had assisted her to make plans to leave Vietnam because of the violence. Consistent with the time the applicant left Vietnam, family violence was identified as a widespread issue within Vietnamese society,[1] and other more recent information has noted continued concerns about the prevalence of family violence against women within Vietnam.[2] The Tribunal accepts from these sources that family violence has been a longstanding issue within Vietnam and, given the consistency of the applicant’s claims with country information considered by the Tribunal and given the clear manner in which she gave this part of her evidence at the hearing, the Tribunal accepts that during her marriage the applicant was subject to family violence which included physical violence.
[1] DFAT Country Information Report, Vietnam, 31 August 2015 at 3.47.
[2] US Department of State, 2021 Country Reports on Human Rights Practices 2021, Vietnam at
The applicant gave evidence to the Tribunal at the hearing, consistent with her previous written claims, that her husband has passed away. In her written claims, the applicant stated that this had occurred in 2015 and the Tribunal accepts this as correct. Given this, the Tribunal finds the applicant does not face a real chance of serious harm from her former husband if she returns to Vietnam now or in the reasonably foreseeable future.
Claims relating to husband’s family
The applicant has claimed that her husband’s family has threatened her and that, because of this, she fears harm from her husband’s family if she returns to Vietnam. However, because of the inconsistencies in the applicant’s evidence about the threats she claims to have received from her husband’s family members, the Tribunal has not accepted this aspect of the applicant’s evidence.
Following the Tribunal hearing, the Tribunal wrote to the applicant under s 424A about the varying evidence she had given about the threats she claimed to have received since arriving in Australia. The Tribunal’s correspondence noted that, in her statutory declaration dated 16 June 2017, the applicant had claimed that her brother-in-law threated to kill her if she returns to Vietnam and that he had threatened to ban the applicant from raising her son.
The Tribunal’s correspondence noted that at the Department interview on 1 December 2020, the applicant claimed that her parents-in-law threatened to ask her brother-in-law to hit and kill her. The applicant told the interviewer that her brother-in-law had not spoken to her since her husband died. In contrast to this, later in the interview the applicant then stated that her brother-in-law had threatened her a year after her husband died. The applicant told the interviewer that she had received threats from her brother-in-law and parents-in-law many times by phone when her brother-in-law was visiting her parents-in-law and while she was speaking to her son on the phone.
The Tribunal’s correspondence further noted that at the Tribunal hearing on 13 December 2022, the applicant had told the Tribunal that both her brother-in-law and her sister-in-law had been threatening to harm her with a knife and that these threats had been passed to her through her older sister. The applicant gave evidence to the Tribunal that they have not made direct contact with her and that every year they threaten her. Also at the Tribunal hearing, the applicant gave evidence to the Tribunal that before her husband passed away, her brother-in-law and sister-in-law came to her family home and threatened her parents once or twice a year, every year. The applicant gave evidence that since her husband died, they still go to her family home. The applicant gave evidence that her brother-in-law had threatened her once directly over the phone from her parents-in-law’s house while she was speaking to her son.
The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the applicant’s claims about who had threatened her, how many times she had been threatened and how any threats were communicated to her may cause the Tribunal to not accept that the applicant’s brother-in-law, sister-in-law, mother-in-law, father-in-law or any other of her former husband’s family members had threatened her since she had been in Australia. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant’s brother-in-law had threatened to kill her or ban her from raising her son, that her parents-in-law had threatened her or that her sister-in-law had threatened her, or that her sister had passed on threats from her former’s husband’s family, or that her brother-in-law and sister-in-law had visited her family home to make threats.
The applicant provided a response to the Tribunal’s correspondence, in which she stated that she could not afford for a representative to assist her with her application before the Tribunal, that she did not understand her rights and obligations with respect to her case, that she has a low education and understanding of the Tribunal and court systems, and that she did not have time to prepare for the hearing given her work commitments. The applicant also stated in her response that she was confused and scared at the hearing and felt under pressure, could not concentrate and did not understand the questions and that the interpreter was from a different region and had a different accent.
The applicant further stated in her response to the Tribunal that the word ‘in-law’ had seemed confusing to the interpreter and she had wanted to say the ‘brother and sister of her former husband’. She had wanted to tell the Tribunal that her former husband’s siblings had been telling her sister at least once a year that they would stab her with a knife if she was back in Vietnam. The applicant stated that in 2017, the brother of her husband threatened to kill her if she returned to Vietnam and to ban her from raising her son. Since 2020, his parents had ‘threatened to ask him to hit and kill’ her. As her son was living with his parents, these threats normally happened during her many phone calls to her son.
The Tribunal notes that the applicant was legally represented before the Tribunal, albeit the applicant’s representative did not attend the hearing with her. At the commencement of the hearing, the Tribunal had asked the applicant to let the Tribunal know if she needed a break or did not understand any of the questions the Member was putting to her. The applicant was given a break during the hearing and did not, at any time during the hearing, request to take another break. She did not indicate to the Tribunal that she was having difficulty understanding the questions put to her at any time during the hearing and her answers were appropriate and responsive to the questions asked of her. At the commencement of the hearing (after introductory information was given and before questions were asked of her) the applicant confirmed with the Tribunal that she understood the interpreter. She was asked to indicate during the hearing if she was having any difficulty understanding the interpreter and did not indicate at any time during the hearing that she was having any difficulty understanding the interpreter. While the Tribunal accepts that the applicant may have felt nervous while giving her evidence at the hearing, it does not consider that this explains the significant discrepancies in her evidence. Nor did the other explanations given by the applicant alleviate the concerns of the Tribunal about the overall credibility of her claims, when considered either separately or cumulatively.
The above differences in the applicant’s evidence as to the threats she claims to have received from her former husband’s family members lead the Tribunal to have significant doubts about this aspect of her claims. In particular, the Tribunal considers it implausible that the applicant’s evidence about her contact with her brother-in-law after her husband’s death would vary so significantly if she had been subject to the claimed threats. The Tribunal also considers it implausible that the applicant would characterise her relationship with her parents-in-law so differently, between her claims that her parents-in-law were involved in the threats as raised in her statutory declaration, in contrast to her evidence given at the Tribunal hearing that her parents-in-law had arranged for her to travel to Australia after witnessing the violence her husband had perpetrated against her.
For these reasons, the Tribunal does not accept the applicant’s evidence about claimed threats from her former husband’s family. The Tribunal does not accept the applicant was threatened by any of her husband’s family members while she was in Vietnam and does not accept that she has received any threats from her husband’s family members, either directly or passed on through her sister, since she has been in Australia. Because the Tribunal does not accept this evidence, the Tribunal finds that the applicant does not face a real chance of serious harm from her husband’s family members if she returns to Vietnam now or in the reasonably foreseeable future.
Claims relating to illegal departure, being a failed asylum seeker and data breach
The applicant claimed in her statutory declaration, submitted in support of the SHEV application, that she fears returning to Vietnam because she departed Vietnam illegally, because she would return as a failed asylum seeker and because she was subject to the Department’s data breach in 2014.
The applicant did not raise these claims in her evidence to the Tribunal at hearing. The evidence she gave to the Tribunal was that she had obtained a passport through the passport office in her own name and with her own photograph and had left Vietnam via air using this passport. The Tribunal observed during the hearing that, while there are penalties for illegal emigration from Vietnam,[3] it may not accept the applicant’s written claims that she had departed the country illegally, given her evidence she had departed on a passport legitimately obtained and with her correct details on it.
[3] DFAT Country Information Report, Vietnam, 11 January 2022 at 5.29.
The Tribunal noted during the hearing that DFAT is not aware of any offences relating to illegal emigration being used against failed asylum seekers. DFAT reports that all individuals involved in people smuggling operations are typically held for questioning to determine their involvement in operations and that migrants who have employed the services of people smugglers face, at worst, an administrative fine. DFAT further reports that authorities in Vietnam occasionally question returnees from Australia, that the process generally takes one to two hours and that DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[4]
[4] DFAT Country Information Report, Vietnam, 11 January 2022, at 5.29 – 5.31.

The Tribunal noted during the hearing that DFAT states that most people subject to people smuggling are seen by the government as victims and not as criminals. Those who have spent their time overseas publicly criticising the government may face adverse attention from the authorities upon return.[5]
[5] DFAT Country Information Report, Vietnam, 11 January 2022, at 5.35.
The Tribunal observed that it accepted the applicant’s information may have been included in the 2014 data breach and that the authorities may be aware that she had been in Australia. The Tribunal noted that the applicant did not claim to have been politically active in Australia and it may not accept she had left Vietnam illegally. The Tribunal noted that it may not accept that any questioning or fine imposed by the authorities amounts to serious harm or significant harm. The applicant stated in response to this information that her fear is the threat from her former husband’s family.
The Tribunal also noted during the hearing that country information states that returnees may face a range of difficulties upon return which may include unemployment, under-employment, challenges accessing social services or debt from borrowing for travel.[6] The Tribunal observed that the applicant had given evidence that she had worked in Vietnam and in Australia, that she had given evidence to the Tribunal that she no debt from her travels to Australia and that her current partner, with whom she is residing in Australia, has a house in Vietnam where his mother and daughter are residing and where she would be able to return to. The applicant stated in response that her current boyfriend’s house is not far from her former husband’s house.
[6] DFAT Country Information Report, Vietnam, 11 January 2022, at 5.32.
The Tribunal does not accept, from the evidence given by the applicant at hearing, that she would be perceived by the authorities to have departed Vietnam illegally, given she left through the airport on a valid passport. The Tribunal is prepared to accept that, given the mode of transport used by the applicant between Indonesia and Australia, the authorities may become aware of, or may infer, that she used the services of a people smuggler to travel to Australia. The Tribunal accepts that the applicant may face questioning by the authorities upon return to Vietnam but finds that this would be of limited duration. The Tribunal finds that the applicant may face a fine upon return if the authorities discover, upon questioning her, that she used the services of a people smuggler for her travel to Australia. The Tribunal finds that the applicant’s conduct in Australia would not bring her to increased or adverse attention to the authorities in Vietnam. The Tribunal finds that any questioning or fine faced by the applicant does not amount to serious harm within the meaning of s 5J(5). The Tribunal finds there is not a real chance the applicant faces serious harm, if she returns to Vietnam now or in the reasonably foreseeable future, because of illegal departure from Vietnam, as a failed asylum seeker returned from Australia or because of the Department’s data breach in 2014, or for all of these reasons combined.
Other claims raised in the statutory declaration
The applicant claimed in her statutory declaration that she has concerns about returning to Vietnam as a single woman and that she would be unable to find accommodation or work. The applicant did not raise these claims in her evidence to the Tribunal at hearing and she described to the Tribunal having been in a long-term relationship with another Vietnamese national whose family reside in the same district in Nghe An province that she previously resided in. The Tribunal observed during the hearing that the applicant would not be returning to Vietnam as a single woman given her long-term relationship with another Vietnamese national. The Tribunal observed that the applicant would be able to reapply for household registration with identification documents.
The Tribunal also observed during the hearing that obtaining further household registration would give the applicant access to services. Country information states that informal employment is very high in Vietnam, that there are low rates of poverty and that the economy continues to grow.[7] The Tribunal observed that given the applicant had a work history in Vietnam and Australia, would be able to reapply for household registration and given the economic and employment situation in Vietnam, it may find the applicant would not face serious harm or significant harm in Vietnam for the reasons claimed. The applicant stated in response that she only has a fear of her former husband’s family. She asked the Tribunal to ‘get her a visa’ to stay in Australia as she fears returning to Vietnam.
[7] DFAT Country Information Report Vietnam, 11 January 2022, at 2.5 – 2.6.
The applicant raised for the first time at the Tribunal hearing that she fears disapproval from her mother-in-law and father-in-law who are ‘no longer sympathetic’ to her since finding out about her new relationship. The Tribunal observed that any disapproval from her former husband’s parents may not amount to serious harm or significant harm, to which the applicant stated that they could come to her place and if they met her on the street could humiliate her.
The Tribunal accepts the evidence given by the applicant that she is in a long-term relationship with another Vietnamese citizen who has a home in Nghe An province. The Tribunal finds that the applicant would not return to Vietnam as a single woman and that she does not face a real chance of serious harm for this reason. The Tribunal finds that the applicant would have access to accommodation through her current partner and that she has found employment in Australia which indicates she would be able to work in Vietnam. The Tribunal finds that any disapproval by her parents-in-law about her new relationship does not amount to serious harm within the meaning of s 5J(5). The Tribunal finds the applicant does not face a real chance of serious harm as a single woman, or because she would be unable to find accommodation or employment, or because of any disapproval by her former husband’s family members, if she returns to Vietnam now or in the reasonably foreseeable future.
Claims relating to oppression and lack of human rights
The Tribunal noted during the hearing that in her written protection application, the applicant had claimed to fear oppression and to fear a lack of human rights in Vietnam. The Tribunal asked the applicant what she had meant by this and she stated that if she is assaulted, no one will intervene. The Tribunal observed that Vietnam has ratified a number of human rights instruments,[8] and that it was having difficulty seeing that the applicant would be personally affected by any human rights concerns in Vietnam. The applicant stated that if anyone is beaten or killed, no one will intervene like in Australia.
[8] DFAT Country Information Report Vietnam, 11 January 2022, at 2.31.
The Tribunal does not accept the applicant is at risk of being beaten or killed if she returns to Vietnam. The Tribunal finds that the applicant does not face a real chance of serious harm because of oppression or a lack of human rights, if she returns to Vietnam now or in the reasonably foreseeable future.
The Tribunal has also considered the cumulative claims of the applicant but is not satisfied she faces a real chance of serious harm in Vietnam when her claims are considered cumulatively.
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). This requires the Tribunal to consider whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
For the reasons set out above, the Tribunal does not accept the applicant faces harm from her former husband or any of her former husband’s family members. The Tribunal has found that the applicant’s current partner has accommodation in Nghe An province and that the applicant has been able to find employment in Australia. The Tribunal has accepted that the applicant may face questioning for a limited period of time upon return to Vietnam and may face a fine from the authorities and may face disapproval from her former husband’s parents because of her new relationship.
The Tribunal finds that the applicant does not face a real risk of arbitrary deprivation of her life, the death penalty or torture in Vietnam. The Tribunal finds that the imposition of a fine, questioning by authorities and disapproval from her parents-in-law does not amount to cruel or inhuman treatment or punishment or to degrading treatment or punishment. The Tribunal finds there is not a real risk the applicant faces significant harm if removed from Australia to Vietnam.
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 Tribunal accepts the applicant is in a long-term relationship with another Vietnamese national who has separate protection claims and who has not, at the time this decision is being made, been found to be owed protection. The Tribunal 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).
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 1133

31 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice