2210048 (Refugee)

2210048 (Refugee) [2023] AATA 348 (6 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2210048
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Bridget Cullen
DATE:6 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 6 January 2023 at 4.17pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – Viet Nam Cong Hoa (Group Hai Dang) – loan sharks – religion – Roman Catholic – credibility concerns – delay in seeking protection – lengthy unlawful visa status – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 132 ALD 269
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 7 July 2022 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, who claims to be a citizen of Vietnam, applied for the visa on 22 May 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations as outlined in s 36 of the Act.
The Applicant appeared before the Tribunal on 19 September 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 told the Tribunal that he understood all of the Tribunal’s questions, as well as the interpretation, at the conclusion of the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An Applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the Applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his Application for a protection visa form, the Applicant indicated that he arrived in Australia [in] March 2008, on a lawful student visa. He further declared that he has overstayed his student visa by a period of approximately 9years, as the student visa expired in 2013.
The Applicant outlined his claims for protection in his Application for a protection visa form as follows:
When I was a teenage student in Vietnam, I was very actives to learn for skills, but also aware that our country running the Communist Laws, as a student we do not have much rights to raise any opinion about changing or promote for any Democratic nor Human Rights at all, as its against the current system politically. We have a group of young students together who agree to fight peace fully for our Freedom of speeches, greater Democratic as No Democratic at all, also Human Rights in Local and also the whole country. Many occasions been hit by the School management, and they informed my Parents for stopping the actions. Then I fight also the Local Authorities, not give up the rights, but have no rights, they been threatening our parents and financially distortion, this is how they live. Since I work for self-family business for livings, also effected by the Local Authorities as my family often opposing their policies and demanded for changes. The local Authority also discrimination about people and religious, where they come from into my family, its then Family become scary, and mental issues come up. Myself and friends have always fought for the "HUMAN RIGHTS And DEMOCRACY Act", should have in the country. They called "Anti-State Government Propaganda. The Parents scary and from time to time.
After school, working for livings causing further difficulties as Debts incurred and opposed Government Laws. I see no hope in the Communist Country, then seeking abroad for Travel, learning living skills, also learning the Freedom of speech, Human Rights and Democratic of the Western country, such as Australia. This is how our political system should follow and copy the Democratic /Human running for our political system. Also the high interest shark loan creditors after day by day to threaten life.
The Applicant claims that he has experienced harm in Vietnam, which he described in the following terms in his Application for a protection visa form:
As reported above clause, family been threatening not opposed the Government policies, otherwise would be jailed, and they are No joke on political issues, as many other citizens been jails already, just for fighting on Face Book above issues. Been expelled to class and banned not to enter class room many occasions, as spread out further Anti-State Government policies, this is serious problem involved. Daily problem with the local Authorities going on. The high interest shark loan people after day by day to threaten daily livings.
The Applicant did not seek help within Vietnam because Vietnam is a communist country. He says that there is corruption within all levels of government, and that he will be targeted if he returns, and treated as a spy given the time he has spent overseas. Further, he will be prevented from advocating for human rights and democracy in Vietnam and will likely be arrested given his views. As communist laws apply uniformly throughout Vietnam, the Applicant says he would be unable to relocate within Vietnam in order to maintain safety.
Following receipt of his Application, the Department sent the Applicant a letter inviting him under s 56 of the Act to provide additional information about his claims, and to provide clarification on particular points. Specifically, the Applicant was asked to provide information about:
·his involvement in a political group in Vietnam;
·whether he is associated with any political groups or parties in Australia;
·details relating to his religion and religious practices;
·information about the threats from loan sharks and his family’s circumstances in Vietnam;
·the particulars of his travel history; and.
- the delay in the lodgement of his protection visa application.
Following some delay, the Applicant provided the following material in response:
- An untranslated document identified as a loan shark document as well as an English translation of the loan shark document, titled “loan agreement”, dated [in] January 2007;
- A photograph of the Applicant depicting alleged injuries by the loan sharks;
- A photograph of the Applicant with the Australian Labor Party’s the Hon. [Mr A] MP (“[Mr A]”), allegedly at a “protest”;
- A photograph of the Facebook profile of a [Name 1] (the Applicant claims [Name 1] is his nickname), which includes the [Mr A] photograph as the profile picture; and
- a link to a YouTube video titled [Video Title 1] by [named channel].
The Applicant’s alleged political views and activity
In his written response under s56 of the Act, the Applicant claimed that he is a member of the Viet Nam Cong Hoa (also known as Group Hai Dang – Group against Vietnam Communist). The Applicant does not have any major responsibilities or duties in the group.
In relation to the photograph of the Applicant with [Mr A], the Applicant claims that [in] December 2015, he joined a group of more than 30 people at a festival in [Suburb 1], Melbourne, to protest against communism in Vietnam. At this time, the Applicant says that he met and spoke with [Mr A], at which time he took the photograph. The Applicant claims that this caused trouble for him, leading to threats being made against him that day. Further, after posting the photograph of himself with [Mr A] on Facebook, the Applicant claims to have received many threatening calls from unknown sources.
The Applicant provided some additional photographs to the Tribunal, which he claims support his assertion that he has been involved in the Viet Nam Cong Hoa group.
The Applicant told the Tribunal that he completed his studies in 2012, and that his student visa expired on the 5^{th of} March 2012. The Applicant told the Tribunal that he agreed that he had been unlawful in Australia since March of 2012 – nearly a 10-year period. He says that he did not make efforts to regularise his visa status as his wife was pregnant and had to leave Australia. The Applicant did not directly explain, despite being asked by the Tribunal, whether he took steps to try and obtain a visa in the 10-year period he was unlawful.
At the hearing, the Applicant told the Tribunal that he was concerned about returning to Vietnam because of the pictures of him that appeared on social media, including the photograph of [Mr A]. The Applicant could not provide any further detail in relation to the concerns he claims to have in relation to the photographs.
The Tribunal asked the Applicant to explain why being pictured with [Mr A] would be a problem from the perspective of the Vietnamese communist government. The Applicant could not explain why this would be a problem as claimed. He could not provide details of the festival he was allegedly attending.
The Tribunal is prepared to accept that the photograph is of the Applicant pictured with [Mr A], and that it was taken at [Suburb 1], as a shopfront with a [Suburb 1] address appears in the background of the picture. The Applicant has provided scant detail and cannot articulate why a picture of an Australian Labor leader would have any particular relevance to the communist regime in Vietnam.
The Tribunal obtained information from the public [social media] page of [Mr A], which depicts [Mr A] at the [Suburb 1] Lunar Festival [in] January 2015, wearing the same shirt and with the same length haircut and style as depicted in the photograph provided by the Applicant. The [Suburb 1] festival is a celebration of Vietnamese culture and the Vietnamese New Year.
The Tribunal put to the Applicant that it may have some difficulty accepting that the photograph was taken in December of 2015, given that [Mr A]’s Instagram page indicated he attended the [Suburb 1] Lunar Festival [in] January of 2015, wearing the same shirt and with the same hairstyle. In response, the Applicant said, “No, this is not the right one,” and reiterated his claim that the photo was from an anti-communist protest in December of 2015.
The Applicant then told the Tribunal that, “At that time, my friend told me to go and get a photo with him ([Mr A]), to prove that we are part of the anti-communist movement”. The Tribunal asked the Applicant why he would need to prove he was part of the anti-communist movement in 2015, and he said, “to protect myself” as “we don’t want to go back to Vietnam, we can ask for protection in Australia”.
The Tribunal considers that [Mr A] public Instagram page is a reliable indicator of the events that [Mr A] attended while serving the community. On this basis, the Tribunal does not accept that the photograph of the Applicant with [Mr A] was taken in December of 2015, and the Tribunal does not accept that the photograph was taken at a “protest” against communism, as claimed by the Applicant. The Tribunal considers it likely that the photograph was taken at the [Suburb 1] Lunar Festival in January of 2015, and that [Mr A] graciously posed for the photograph as politicians are known to do when engaging with the community.
The Applicant’s concession that he strategically sought out the photograph with [Mr A] to improve the prospects of obtaining a protection visa is concerning. It is further concerning that this transpired in 2015; yet the Applicant did not apply for protection until 2022.
The Tribunal is not prepared to accept that the Applicant is a Member of Viet Nam Cong Hoa. On his own evidence, he does not have any duties in relation to the group. The evidence before the Tribunal consists of a series of undated, undetailed, unexplained photographs. There is no credible evidence before the Tribunal that the Applicant has been directly involved in any political activity, either in Vietnam or in Australia. The Applicant left Vietnam lawfully in 2008, suggesting that he had no issues with immigration authorities in Vietnam, which in turn suggests that the Applicant was not of interest to the Vietnamese authorities when he departed. There is no evidence, other than the Applicant’s own undetailed assertions, that any threats have been made to him or to his family.
The Applicant’s alleged threats by loan sharks
The Applicant claimed that the loan he took out was for his studies, in the amount of AUD35,000. He says that he could not borrow from a bank as he did not meet the credit criteria. As such, he says he needed to get a loan from a provider that charges higher interest. The Applicant did not respond the Tribunal’s question about why he took out a loan knowing that he could not repay it. The Applicant said that he had not made any repayments on the loan for a 15-year period, so that the interest on it had multiplied significantly.
The Applicant says that there are many “gang members” and therefore he will be in danger, despite also conceding that he has not been contacted by anybody instructing him to repay the loan. He says that his family was threatened if he returns to Vietnam – that “every month they [the loan sharks] go around and say they have to repay the loan, but my parents do not have the money”. His parents have not reported the matter to the police. The Applicant then told the Tribunal that they did not go to the police, as he is responsible for the loan, not his parents.
The Applicant told the Department that his family was being threatened shortly after his arrival in 2008; yet the written loan agreement indicates that the loan was not due until 2012. When asked about this, the Applicant said that the threats began after his wife returned to Vietnam in 2012. When asked if his wife had been harmed, the Applicant said she told the loan sharks that she was not with him any longer. The Applicant said that his parents had not been harmed as they are “elderly”.
The Applicant’s evidence is vague, and inconsistent. The Tribunal is prepared to accept that the Applicant may have borrowed money to pursue his studies in Australia but does not accept that he has borrowed money from “loan sharks”. It follows that the Tribunal does not accept that the Applicant, or any of his family, have ever been threatened by any loan sharks.
The Applicant’s alleged religious views and activity
The Applicant claims to fear returning to Vietnam because he is Catholic. He told the Tribunal that his family in Vietnam is Buddhist.
The Tribunal asked the Applicant why he feared returning to Vietnam and he replied that they will persecute him, and they can “confiscate the lands”.
The Tribunal gave the Applicant multiple opportunities to explain his beliefs and concerns, flagging that it had limited information about his religious practices. Eventually, the Applicant told the Tribunal he adopted the religion of his new partner, and that he attended the “[Church 1]” on Saturday or Sunday afternoons, every week.
The Applicant says he first became a Catholic about two or three years ago. He was not a Catholic in Vietnam and did not become a Catholic until he met his current partner, [Ms B], 5years ago.
The Applicant claimed to have been baptised two years ago at the “[Church 1]” in [Suburb 2]. When asked to describe what happened at the baptism, the Applicant said that he was given a “religious name” by a sponsor who would then support him in his religious life. The Applicant said that there was a small ceremony, but otherwise did not provide any information about the meaning of the baptism or its importance to him.
The Tribunal asked the Applicant to confirm whether he attended “[Church 1]” or “[Church 2]” in [Suburb 2]. The Applicant insisted that it was “[Church 1]” but could not explain where in [Suburb 2] the parish was located. The Tribunal then flagged that the Catholic Archdiocese website ([URL redacted]) does not list a “[Church 1]” in [Suburb 2] but does list a [Church 2] located on [named] Street in [Suburb 2]. The Applicant claims to attend a service every week, yet could only describe the church as being near, “the blue thing”. Eventually, the Applicant told the Tribunal that he “doesn’t know much” as he is originally Buddhist.

The Tribunal does not accept that the Applicant is a practising Catholic on the basis that the location of the church he claims to attend cannot be verified and it appears that there is no “[Church 1]” Catholic Church located in [Suburb 2], and the Applicant has provided little detail in relation to his religious practices.
The Applicant seeks a partner visa
The photographs provided by the Applicant to the Tribunal include a series of pictures of a woman he claims is [Ms B]. The Applicant explained to the Tribunal that “my partner has broken 1 left eye because of accident by 20 years ago,,,she can't see 2 eye,,just see 1 eye and wanted my helping her all the time,, and we wished marriage certificate this year,,, please see her picture and helping we have together forever,,,”.
The Applicant then asked the Tribunal for advice about obtaining a partner visa and told the Tribunal that he wanted to apply for a partner visa, but that the lawyers wanted $10,000.00. The Tribunal explained that it cannot provide migration advice to applicants.
The Tribunal has carefully considered all of the Applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. In particular, the Tribunal notes Foster J’s comments about the need to take a cautionary approach as set out at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]. However, the Handbook also states (at [203]:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal considers the Applicant to be an unreliable witness for the following reasons.
Firstly, the Tribunal has grave concerns about the Applicant's credibility given the very significant time that it took for him to make his protection claims. Allowing for the time that he was present in Australia pursuant to the student visa, it was still nearly ten years following the expiry of his student visa before he applied. Clearly the Applicant was aware that he could apply for protection in 2015 when he and his friend had their photographs taken with [Mr A] to improve their claims to require protection based on political activity, and yet, the Applicant waited until 2022 to apply.
The Tribunal has had regard to Heerey J’s comments in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, at [11]:
The applicant complained of the tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution….
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal is cognisant of the fact that after the Applicant’s student visa expired, the Applicant did nothing about it for nearly a decade, instead electing to remain in Australia unlawfully. The Tribunal does not accept as reasonable the Applicant's explanation for his delay in claiming protection that, “Because I ask lawyers and they told me 4 or 5 thousand to apply for protection”. The Applicant concedes that he did not contact the Department at any point. The Tribunal attaches little credibility to the Applicant where he knowingly breached the law, including working in the community, for such a lengthy period.
In summary, the Tribunal does not consider the Applicant to be a credible witness for the following reasons:
·The near decade delay in making his protection claims without reasonable explanation;
·Remaining unlawful for nearly a decade before attempting to legitimise his visa status;
·His ability to depart Vietnam without difficulty;
·The implausible evidence in relation to the genesis of the “[Mr A] photograph” and alleged attendance at the non-existent [Church 1] .
Because of the Tribunal's credibility findings, in conjunction with the overall lack of particularity about all meaningful aspects of the Applicant’s claims, the Tribunal does not accept that the Applicant:
·has any political opinion or that anyone is aware of him having any political opinion;
·fears returning to Vietnam because of any political opinion;
·has borrowed funds from any “loan sharks”;
·fears returning to Vietnam because he fears reprisal from “loan sharks”;
·is a practicing Catholic;
·fears returning to Vietnam because of being a Catholic.
Further, the Tribunal does not accept that the Applicant, or his family, have ever been threatened or harmed on the basis of any actual or imputed political or religious activity, or at the hands of any loan sharks. In all of the circumstances, the Tribunal does not consider the Applicant to be a credible witness and is not satisfied that any of his claims are genuine and accordingly rejects his claims in totality.
In conclusion, the Tribunal is not satisfied that there is a real chance that the Applicant will be at risk of serious harm if he returns to Vietnam now or in the reasonably foreseeable future.
Cumulative findings:
The Tribunal has made credibility findings in relation to the Applicant, including a finding that it rejects the Applicant's claims in their entirety, which includes that it does not accept that the Applicant has engaged in any anti-communist political activity, or any political activity, has not received threats from loan sharks, and is not a Catholic. Having considered all of the Applicant's claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the Applicant, the Tribunal finds that there is no real chance that the Applicant will suffer persecution on the grounds of his membership of a particular social group, actual or imputed political views, religion, or any other reason if he returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the Applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vietnam. Accordingly, the Tribunal finds that he does not satisfy the criterion in s36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
The Tribunal has considered the Applicant's claims under complementary protection.
The Tribunal has made credibility findings in relation to the Applicant, including a finding that it rejects the Applicant's claims in their entirety, which includes that it does not accept that the Applicant has engaged in any anti-communist political activity, or any political activity, has not received threats from loan sharks, and is not a Catholic.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the Applicant will suffer significant harm for any of the reasons claimed if he returns to Vietnam now or in the reasonably foreseeable future. In MIAC v SZQRB (2013) 132 ALD 269, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.
Having considered all the Applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the Applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act. Therefore, the Tribunal finds that the Applicant does not satisfy the criterion in s36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the Applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s5J of the Act and therefore he is not a refugee within the meaning of s5H.
Conclusion: Complementary Protection
Considering the Applicant's individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).
Having concluded that the Applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
There is no suggestion that the Applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s36(2).
DECISION
The Tribunal affirms the decision not to grant the Applicant a protection visa.
Bridget Cullen
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 348

6 January 2023

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