2302380 (Refugee)
[2025] ARTA 1204
•31 March 2025
2302380 (REFUGEE) [2025] ARTA 1204 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2302380
Tribunal:General Member R Hampson
Date:31 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 31 March 2025 at 2:18pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group and political opinion – period as refugee in third country and voluntary repatriation – summoned, questioned, prevented from relocating and monitored – anti-government opinions but no activities – returned failed asylum seeker – fear of interrogation and arbitrary arrest – period as refugee and repatriation accepted – passage of time, two passports, unhindered departures and returns, and no supporting evidence – no harassment of wife and child – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 8 February 2023 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 national of Vietnam, applied for the visa on 2 October 2022.The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared in person before the Tribunal on 19 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant]’s brother, [Mr A] who also appeared in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages who appeared in person.
The applicant was represented in relation to the review. The representative, Mr Nguyen attended the Tribunal hearing in person.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be a [Age]-year-old national of Vietnam.
The applicant was born in Binh Dai District, Ben Tre Province, Vietnam, his ethnicity is Vietnamese, and his religion is Catholic.
The applicant first arrived in Australia [in] July 2008 on a 3-month tourist visa and departed [in] September 2008. He arrived again [in] October 2017 on a 3-month tourist visa and departed [in] January 2018. He arrived again [in] September 2022. He applied for a Protection visa on 2 October 2022. This application was refused by the Department of Immigration and Multicultural Affairs (the Department) on 8 February 2023. The applicant then made an application for review to the Tribunal on 21 February 2023.
The applicant provided copies of all pages of his current Vietnam passport as part of his protection visa application. The delegate accepted the applicant is a citizen of Vietnam and there is no further information before the Tribunal to the contrary. The Tribunal finds the applicant is a national of Vietnam, and that Vietnam is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
In his protection visa application to the Department and an attached Statutory Declaration dated 01 October 2022 the applicant made the following claims as summarised in the delegates decision record
·In early [Year], the applicant and his brother ([Mr A]) escaped Vietnam. They stayed in [Location] Refugee Camp in [Country] where they awaited resettlement. However, the refugee program allocation was exhausted and the UNHCR made arrangements with the Vietnamese government to repatriate citizens who had not been resettled in a third country.
·In [Year], the applicant was voluntarily repatriated to Vietnam.
·The applicant was ‘disturbed’ by local authorities due to being an illegal escapee who had been repatriated to Vietnam. He was summoned to present himself at the local police station upon request. He was also questioned regarding his political opinions. He was unable to relocate or move to another part of the country as he was an illegal escapee who had been repatriated.
·In 2005, the applicant’s brother was sponsored by their uncle and resettled in Australia. The applicant was not sponsored at the time due to their uncle’s mistaken belief that he was only able to sponsor one person.
·The applicant travelled to Australia to visit his brother in 2008 and again in 2017.
·After returning to Vietnam in 2018, the applicant was subjected to stricter monitoring by Vietnamese authorities. The applicant decided to travel to Australia to consult with his brother and he arrived in Australia [in] September 2022.
·The applicant subsequently sought migration advice with regard to his individual personal circumstances, migration history and as a result of being a ‘de facto refugee status since [Year]’.
·The applicant claims that, whilst he does not want to engage in any political activity against the Vietnamese government, he has anti-government opinions which led to his decision to escape Vietnam in [Year].
·The applicant fears he will be interrogated and arbitrarily arrested by Vietnamese authorities if he returns to Vietnam on the basis of being an illegal escapee who was repatriated to Vietnam.
·The applicant is requesting the Department to investigate with the UNHCR to affirm his refugee status to enable his brother to sponsor him to settle in Australia. [1]:
[1] Department of Home Affairs, Delegate decision record, dated 8 February 2023, page 2.
11. The applicant was not invited to an interview with the delegate.
12. The delegate’s assessment and findings are extracted below:
Assessment
Voluntary repatriates who departed illegally
The applicant fears he will be interrogated and arbitrarily arrested by Vietnamese authorities if he returns to Vietnam on the basis of being an illegal escapee who was repatriated to Vietnam. The applicant claims he has had ‘de facto refugee status since [Year]’. He claims he has been summoned by local police in Vietnam who questioned him about his political opinions and that he has been subject to stricter monitoring by authorities.
In assessing the applicant’s claims, I take into consideration the applicant provided an uncertified copy of a ‘Certificate of Returning Home’ (cited above) in support of his claims. I note the certificate is not certified and a NAATI English translation has not been provided. Notwithstanding, given country information above regarding the substantial number of Vietnamese citizens who left the country after communist forces seized control of South Vietnam in 1975, it is plausible, and I accept the applicant fled Vietnam and spent time in a refugee camp in [Country]. In the absence of any evidence to the contrary, I also accept the applicant was voluntarily repatriated from [Country] to Vietnam in [Year] as claimed.
In regards to the applicant’s claim that he has had ‘de facto refugee status since [Year]’, I note that, whilst the information contained in the above certificate refers to the use of the document by ‘persons illegally going abroad now permitted to return home’, it does not contain any reference to the applicant having been assessed by the UNHCR or the outcome of a refugee status determination prior to the applicant being repatriated in [Year].
Notwithstanding, given the test to be applied is a forward-looking one, I have had regard to country information cited above in assessing the applicant’s claims and treatment by authorities in Vietnam when considering if there is a real chance the applicant will be subject to serious harm in the reasonably foreseeable future.
The applicant claims repatriates were treated as traitors and monitored by local authorities and that he was summoned to present himself at the local police station upon request. I take into consideration the applicant was repatriated some 30 years ago. There is no evidence before me, including country information cited above, to suggest individuals who were repatriated are subject to ongoing suspicion solely on the basis of illegally departing Vietnam and being repatriated from refugee camps several decades prior.
Furthermore, whilst the applicant claims he has been questioned and monitored by authorities, I take into consideration the applicant has not claimed nor is there information to suggest the applicant has been subject to harm by authorities in the decades following his repatriation.
I have considered the applicant’s claim that since he returned to Vietnam in 2018 after visiting his brother in Australia, local authorities have monitored and followed his daily activities including being questioned upon return about whether he had knowledge or interaction with anti-communist organisations in Australia. Furthermore, the applicant claims he was questioned each time there was a demonstration against the government or criticism on the internet.
In assessing the applicant’s claims in this regard, I take into consideration the applicant provided minimal detail beyond his own statement. Specifically, the applicant has not provided a detailed explanation outlining information such as relevant dates, locations, names of authorities, length, or nature of questioning. I also take into account country information cited above which indicates people may be questioned upon return to Vietnam and there is no evidence before me to suggest the applicant was threatened, harmed, detained, or charged with any offences as a result of being questioned by authorities.
On the basis of the information before me, including the material provided by the applicant and country information cited above, I am not satisfied there is a real chance the applicant would be persecuted if they return to Vietnam on the basis of their membership of the particular social group ‘individuals who were voluntarily repatriated to Vietnam in, or around, [Year] having illegally departed’.
Anti-government opinion
The applicant claims that, whilst he does not want to engage in any political activity against the government, he has anti-government opinions which was the reason for him escaping Vietnam in [Year].
The above country information shows that individuals with a high profile from involvement in political activities who have been identified as anti-government activists or human rights before me to indicate the applicant was subjected to harm by Vietnamese immigration authorities during any of the above periods of international travel or that he was prevented from departing.
Furthermore, I take into account the applicant’s current passport was issued [in] 2017. There is no evidence before me to suggest the applicant was the subject of any adverse interest or questioning when he applied for, or when he was issued with, his current Vietnamese passport, or that any of his passports have ever been confiscated or cancelled. I am of the view that the applicant’s ability to exit Vietnam freely on his own genuinely issued Vietnamese passport indicates he did not possess a profile of adverse interest to Vietnamese authorities due to his political opinions, actual or imputed, or for any other reason, when he has interacted with Vietnamese immigration officials or when he last departed Vietnam.
I have considered the applicant’s claim that he has been subjected to stricter monitoring by authorities since he returned from Australia in 2018, however, I note the applicant has provided minimal detail in support of his claims beyond his own statement. In particular, the applicant has not provided a detailed explanation outlining the surveillance measures he was subjected to, the relevant timeframe and details of those involved in monitoring the applicant, nor has he specified the reason for his awareness that his activities were being monitored and closely controlled.
Furthermore, there is no evidence before me to indicate the applicant has been involved in any political activities in Australia, either online or in public, that have come to the attention of the Vietnamese authorities or elevated the applicant’s profile to that of an active organiser or dissident so as to be of interest to the Vietnamese authorities if they return.
On the basis of the information before me including the material provided by the applicant and country information cited above, I am not satisfied there is a real chance the applicant would be persecuted if they return to Vietnam as a result of their political opinion, actual or imputed.
Finding
I have considered the applicant’s claims, circumstances, and relevant country information individually and cumulatively. I am not satisfied that [the applicant] is a refugee as defined in s 5H(1) of the Act. Accordingly, I find [the applicant] is not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) of the Act.
As I am not satisfied that [the applicant] is a refugee as defined in s5H(1) of the Act, an assessment in relation to s5H(2) of the Act has not been made.
I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk [the applicant] will suffer significant harm as defined in s36(2A) of the Act. Therefore, I am also not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.[2]
[2] Department of Home Affairs, Delegates decision record, dated 8 February 2023, pages 9-11.
Evidence before the Tribunal
Prehearing submissions
The applicant was sent prehearing information on 20 November 2024 which includes questions the applicant may respond to; which he did so and returned his form[3] to the Tribunal on 25 November 2024 with the following information included in answer to:
[3] Administrative Review Tribunal, Pre-Hearing Form, dated 25 November 2024, page 5.
In your application for a protection visa you would have provided reasons for or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?
I escaped Vietnam a a refugee and staying at the Refugee Camp in [Location, Country] since [Year]. As the Refugee Program was exhausted at that time all refugees were repatriated back to their origin country.
I returned back Vietnam on [Date]. I heard if any who has relative from a Western country to sponsor that repartriated refugee would be accepted.
My biological brother, [Mr A], was sponsored by our uncle and he arrived to resettle in Australia. I got the problem of misunderstanding of my uncle so I was not sponsored.
I am now sponsored by my brother with his form 681 and his relating personal documents.
I am expecting the consideration by the Tribunal to accept me as a real refugee to re-settle in Australia like my brother.
14. He also attached a NAATI certified copy of his Repatriation Certificate dated [Date], which is translated into English dated and sealed 25 November 2024, a copy of his brother [Mr A]’s current Australian passport and Australian Citizenship (dated [March] 2005) and a copy of a form 681- Refugee and Special Humanitarian Visa proposal.
Oral evidence at hearing
15. The applicant stated he had assistance to prepare his Protection visa application from his migration agent, Mr Nguyen. He is aware of the content of his application.
Family
16. The applicant informed the Tribunal he has [siblings], one [brother] in Bin Dai province, Vietnam, the other [brother] who he lives with currently at [Suburb 1], Queensland, Australia and [other] siblings who are now deceased. His [brother] visited Australia in 2009. His [brother] did not flee Vietnam with the applicant and [Mr A].
17. His brother, [Mr A] came to Australia in 1997 sponsored by an uncle (now deceased) after he was a asylum seeker in a third country which was [in Location] in [Country] from [Year] and then voluntarily repatriated to Vietnam in [Year]. Upon my questioning about harm in Vietnam before he came to Australia in [Year] the applicant stated his brother suffered harassment being summoned back and forth. The applicant said his brother works in a [workplace] in Brisbane.
18. The applicant has cousins who live at [Suburb 2], Brisbane Australia with whom he has contact with on a three to four weekly basis.
19. The applicant states he is married, and his wife lives in Vietnam, and they are temporarily separated. He and his wife have one [child] aged [Age] years who lives with his mother in Vietnam. The applicant is in contact with his wife and [child] via telephone daily in the afternoon. On my questioning about why they did not come to Australia he said he applied for a tourist visa just for himself and asked if they wanted to come with him, he said, ‘yes’.
Travel history and status as a ‘voluntary repatriation asylum seeker’[4]
[4] It is noted in the research that voluntary repatriation refugees were later referred to as voluntary repatriation asylum seekers as their refugee status had been rejected and they were repatriated to their country of origin. [4]Ugly sanctuary - Inside Indonesia: The peoples and cultures of Indonesia, accessed 18 March 2025
20. The applicant stated he left Vietnam in [Year] when he was [Age] years old, he was in the company of his uncle who told him in the evening after school they were leaving. His parents were working far away and did not know his uncle was taking him away. His other siblings were living far away.
21. He travelled and arrived as a refugee to [Location], [Country] from the end of [Year] until he voluntarily repatriated back to Vietnam by [Year].
22. The applicant worked in Vietnam after his repatriation as a [work sector] worker until he left Vietnam in 2022. He works now in Australia in the same [workplace] as his brother.
23. On my questioning regarding his travel to Australia he said he came to Australia as a tourist in 2008 and 2017. He reported getting assistance obtaining the tourist visa as his brother in Australia was a family sponsor for the visa. I asked him why he did not apply for a protection visa when he came to Australia in 2008 and 2017, he said ‘at the time, not yet’. I asked him to clarify, he said, ‘at the time this time every time I went back, I was summonsed and every time I was away from home as a [work sector] worker for 2 or 3 days I was summonsed, constant harassment’. I asked him over what period this happened, he said, ‘every time a [work sector] worker is away from home for 3-4 times on the basis, I was an ex-asylum seeker’. I asked when the harassment started, he said, ‘since I was repatriated.’
24. On my questioning, he reported difficulty re-entering Vietnam, explaining, he is ‘summoned for questions by the local authority.’ He said this has happened each time he has returned from being away for a length of time.
25. The applicant left Vietnam in 2022 and came to Australia, he said,
‘because the authority was getting more and more fickle with me. Occasionally through my wife back home the authority has been asking why her husband been on holiday for so long and when he get back, he needs to report to the authority immediately.
He said this difficulty with the authority was ‘on the basis I was an asylum seeker previously and away for any length of time they start to suspect I would attempt to flee the country again.’
Harm on return to Vietnam
26. When asked if he experienced any harm while living in Vietnam, he said, ‘no other than the summonsing.’ Asked about what he would fear if he were to return, he said,
‘I will be summonsed, and they will probably lock me up for being away for too long without coming home which has raised suspicion in the past for being a political bureau suspect for fleeing the country.’
27. Asked who would harm him on his return and what would they do to him he said, ‘they will arrest and investigate me.’ Asked if he had ever been arrested in the past and why this would be different this time, he said, ‘because I have been away for over two years.’ When asked on what grounds would he be arrested, he said, ‘on political reason because I was an ex-asylum seeker.’
28. The Tribunal put country information on voluntary repatriation asylum seekers which states, this monitoring was a positive thing rather than a negative[5]. The information stated that repatriation asylum seekers were supported with business grants and funding. The applicant stated he received three hundred dollars at the time of his return. When asked about my concerns regarding the positives of the monitoring to ensure his safety he said, ‘no comment.’
[5] Canada: Immigration and Refugee Board of Canada, Vietnam: Information on the treatment of returnees, 1 September 1997, VNM27680.EX, available at: accessed 18 March 2025
29. I asked him if his brother had returned to Vietnam as he is also an ex-asylum seeker, he said he had been back in 2023 and he did not know if the authorities had questioned him.
Evidence of the harassment by local authorities
30.When asked about this harassment and summoning by the local authorities, he said, ‘the only evidence is my wife calling from Vietnam and what she told me.’ Authorities do not harass his wife and [child]. I raised this as a concern regarding, the level of harassment he indicated, when asked if he wished to comment, he said, ‘ my fear if I were to return, I may be arrested and investigated.’ When asked how this is different from the previous two times he has returned, he said, ‘last time around I was on a tourist visa and this time is for a protection visa.’ I asked him to explain why it had taken him this long if he knew he stayed away for so long if he is concerned about being arrested, ‘ he said, ‘‘because I applied for a protection visa.’ I asked him to explain how this then could be seen as contradictory to his original application, he said, ‘yes because I applied and then I have been here for so long waiting for my application that is why I have been away for so long’, this reason is however different from his original application and when asked if he wished to comment on this he said, ‘first few times stayed for three months then went back and this time I stayed here a bit longer’.
31.When asked about this main reason for protection in 2022 when he arrived, he said, ‘the reason at the time was back home earning a living was getting very difficult by the day and when I went to work far away when I got home, I was harassed and questioned constantly’. When asked how the questioning constituted harm as per the refugee criteria and the concept of real chance or real risk of harm, he said, ‘I am afraid they might suspect me of being another asylum seeker on the grounds of being an ex-asylum seeker.’
32.He was also asked with regard the claim about the authorities monitoring his activities, he stated, ‘it is compulsory for me as I am an ex-asylum seeker.’ Country information[6] regarding this point was provided to the applicant for his comment that it is compulsory for all citizens to do so but only if they are away for more than 30 days or moving to another location permanently, he said ‘ it’s different because I have to go away to work and did not report because of the nature of this work being here one day and stay in different places at short notice’. Which is then different to ‘having to report.’ He then said he did not report and then on his return he was summonsed to give cause. When asked about the consequences of not reporting he said, ‘they made a report and I was fined a large amount but the fine varies from year to year up to a day’s wage, 400,000VND currently. He said he was fined each time he went away but every few months when he worked far away for a few days. When asked when he knew he was going to be fined why did he not report to the authorities beforehand. He said, it was a last-minute work requirement to travel from one province to another and he said ‘ the employer helped with the fines. When asked about evidence of the fines, he said, ‘at the time yes, but not now’ he had a receipt of the fine then.
[6] Law of Residence: Trung ương, accessed 18 March 2025
33.When asked about the grant of his visa’s and two valid passports since 2007 and no issues with authorities on departure or arrival he said, ‘no issues’. He claimed to be closely monitored by officials on all his movements between provinces, he said, ‘not on a regular basis but occasionally.’ I raised my concern that occasional monitoring or reporting does not constitute a real chance of harm and asked him if he wished to comment, ‘he said, ‘no’’. When asked about final comments to the Tribunal the applicant said he wanted the Tribunal to consider he may face harm on his return. When asked if he faced harm in the past he said, ‘no.’
Anti-government opinions
34. When asked about the anti-government opinion he stated in his protection visa application he said, he did not understand and as such the member showed him the answers, he provided on the statutory declaration signed and dated by him on 1 October 2022, where he states,
‘I was under close control, monitor and following each time there was a demonstration against the communist government or any criticism on the internet. Coming home from Australia I was raised question if I did attend any activity organized by anti-communist-government organisations (sch as VIET TAN or Veteran ARVN (Armed Forces of Republic of Vietnam Organisations) in Australia or did I know them their leaders?
‘I of course just made a visit to my brother and other relatives to spend time together in family atmosphere. We today do not want to have any political activity which aims at against the Vietnam government. We however have opinion against e totalitarianism of Vietnam communist party. That is the reason we escaped Vietnam in [Year]’.
35. This was interpreted for him in Vietnamese. After reading this information to him he could not explain the information outlined in the application but reiterated he provided the information. He stated he did not have any involvement with anti-communist organisations. He stated he was generally asked questions about anti-government and they were suspicious because he was a previous asylum seeker although he said they had no evidence of this but just suspected so they would ask. On questioning about having ever expressed anti-government opinions about the government of Vietnam he said he had not. He stated has not been charged or arrested by the government of Vietnam for any reason.
36. At hearing the applicant was asked about his claim to fear returning to Vietnam because of his ‘antigovernment opinions’ in opposition to the Communist party of Vietnam. At hearing the Tribunal raised country information which states the Vietnamese government are only particularly interested in high level activity such as protesters, leaders, organisers and monitor the activities of these people and they will intercept them if they apply for a passport and monitor if they have a passport entrance and exits from and to Vietnam.[7] He was asked if he wished to comment on why they would have interest in him, who has never protested or commented publicly against the VN government or communist party. He stated, ‘no.’
[7] Vietnam: Activists’ Movements Blocked | Human Rights Watch, accessed 18 March 2025
Protection from the authorities
37. He stated there is no protection from the authority’s harassment and this would be the same if he relocated to any other part of Vietnam.
38. The applicant was asked if he had anything else to support his claim, he said, ‘I am afraid if I go back to Vietnam I would be arrested.’ He said, when questioned, ‘the authorities have looked for me occasionally my wife said’. They do not harass his wife.
Witness - [Mr A] (applicants’ brother)
39. [Mr A] left Vietnam in [Year] and arrived at the [Location] refugee camp in [Country]. He stayed there until [Year] when he was voluntarily repatriated back to Vietnam. When asked why he left in [Year] he said, ‘at the time the authority was so difficult people would risk their lives by boat’. He was [Age] years old at the time. He explained, ‘the authorities were so difficult when one was away from the house for a day or two about your whereabouts and they may even search the house looking for me and may even arrest because I went out for a couple of days without showing them the permit’. He returned to Vietnam voluntarily in [Year] there was a big, failed protest at the end of [Year] and after this he volunteered to repatriate. The protest was about relocation to a third country like Australia. On his return to Vietnam in [Year] he obtained a job but not freely, he was always questioned about his failed asylum-seeking attempt. He came to Australia in 1997 under his uncle’s sponsorship. Between [Year] and 1997 he was never arrested or charged by authorities in Vietnam but monitored. He said, ‘the monitoring consisted of question family members about my whereabouts if I was not there.’
40. He spoke with the applicant then on a regular basis by letter and then by telephone. On questioning about what his brother told him about his life in Vietnam he said, ‘ workwise the authorities monitored him occasionally.’ I asked if he was worried about his brother, he said, yes, my brother also fled the country and was repatriated.’ Upon questioning about his own return to Vietnam in 2023, he said he was also asked by the authorities, and he said he had to report ‘because there would be a fine or be arrested’. He said the authorities knew he was in Vietnam the provincial authority became aware he was there and if he failed to report, they could arrest him. He returned in 2023 for 2 weeks to visit his older brother. He had no difficulty on his departure but had to show the authorities a permit proving he had reported to the local authority he was leaving otherwise he would not be able to leave. He stated he did not have any issues with the authorities having lived outside of Vietnam for so long because he believed because he was now an Australian citizen, yet they still required him to report his presence there.
Post hearing submissions
41. The Tribunal received a further submission from the applicant after the hearing on 24 February 2025 along with two news articles the first about Vietnamese being arrested for expressing anti Vietnamese policy Facebook posts and the second about Vietnamese law around internet usage. These articles concern other people and are not directly related to the applicant and as such the Tribunal can give these articles limited weight in these proceedings as they are not related directly to the applicant.
The submission from the applicant is summarised below:
· Working – the applicant states he was a mobile [occupation] and was embarrassed by local authorities especially police officers when he was working away from home, he was summonsed or interviewed at home after being away for three days about who he was working for, where he was working and who was assisting him at work. He did not ask for permission from the local authority to do this work because it was inconvenient to get permission when he needed to start work immediately and this permission seeking was difficult to do.
· Visiting his brother in Australia the first and second time- After visiting Australia the applicant was summonsed for interrogation as the authorities suspected he had participated in organisations which promote anti-Vietnam government campaign. They would ask him tricky questions to trap him with his answers and they would arrest him if his answers were wrong.
· Information from his wife – the applicant states his wife tells him via telephone that the local police authority says that if he returned from Australia, he would have to present himself to the police station for interrogation and this is a frightening thing as the police have the power to arrest and detain if they are not happy with the answers.
· The applicant fears if he returned to Vietnam now, he would be arrested and detained by local police authority, and remaining in Australia would save his life.
· He wishes the Tribunal considers his brother’s sponsorship under form 681- Refugee and Special Humanitarian Proposal (previously submitted to the Tribunal in evidence).
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.
REASONS AND FINDINGS
Given the above information the issue is now whether the applicant faces a real chance of serious harm on return to Vietnam, and if not, whether he faces a real risk of significant harm. For the following reasons, the Tribunal has concluded that the decision under review is affirmed.
Receiving Country
The applicant provided his Vietnamese passport in support of his application for a protection visa. The applicant has consistently stated he is a Vietnamese citizen and does not hold citizenship of any other country. Given the supporting documentation, the Tribunal accepts the applicant is a citizen of Vietnam. The Tribunal has assessed the applicant’s claims against Vietnam as his country of nationality and the receiving country.
Credibility
The Tribunal has given weight to the applicant’s oral evidence along with his initial protection visa application, attached statutory declaration and information he has provided in his post hearing submissions and is satisfied he is recalling events with regard his own experience with regard being a voluntary repatriation asylum seeker returning to Vietnam on [Date]. This information is consistent across all his evidence on his claim. As such the Tribunal accepts the applicant was and is a voluntary repatriation refugee who returned to Vietnam from a refugee camp [in Location], [Country].
Real chance
When considering if there is a ‘real chance’ of the applicant being persecuted if he were to return to Vietnam the Tribunal has considered the meaning of this term as it relates to the concept of ‘well-founded fear.’ The Tribunal accepts the role of past events in establishing ‘well-founded fear’ as examined by the High Court in Guo’s case:
Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low- of their recurrence.[8]
[8] MIEA v Guo (1997) 191 CLR 559 at 574.
52.Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
53. Assessing what is likely to happen in the future on the basis of past events involves questions of degree. The Court in Guo explained:
The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[9]
[9] MIEA v Guo (1997) 191 CLR 559 at 574-5.
54.In considering whether there is a ‘real chance’ or a ‘real risk ‘the applicant will suffer harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam the Tribunal has considered MIAC v SZQRB, where the Full Federal Court found that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of well-founded fear in relation to the ‘complementary protection’ criterion.[10]
[10] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Fear of harm because of his status as a voluntary repatriation refugee/asylum seeker
55.The applicant has consistently stated he has never been physically harmed in Vietnam but has been summonsed by local authorities, interrogated, and harassed because he is a former refugee. He fears he will be detained, arrested, and jailed if he returns to Vietnam because of his status as a repatriation refugee who left Vietnam illegally in [Year]. It is noted that those who fled Vietnam were initially referred to as refugees but when they were later found not to meet the refugee criteria of the time they were then referred to as asylum seekers and repatriated to Vietnam on a voluntary or involuntary basis.[11]
[11] Ugly sanctuary - Inside Indonesia: The peoples and cultures of Indonesia. Accessed 23 March 2025.
56.The applicant has provided in evidence to the Tribunal a NAATI (National Accreditation Authority for Translators and Interpreters ) certified translated repatriation certificate signed and sealed on 25 November 2024 which the Tribunal accepts as evidence of this status as a repatriation asylum seeker.
57.The Tribunal has considered country information about voluntary repatriation asylum seekers lives on their return to Vietnam over the past 30 years and into the future if the applicant were to return to Vietnam and does not accept, he will be harmed by authorities.
History
58.At the end of the Vietnam war in 1975 Vietnamese citizens fled Vietnam in their hundreds of thousands and were commonly referred to as ‘boat people’. Many of these people failed to survive their passage from Vietnam to destinations such as Hong Kong, Indonesia, Malaysia, the Philippines, Singapore and Thailand. Galang Island in Indonesia was one of the biggest refugee camps in Southeast Asia only closing as a refugee camp in 1996. From these refugee camps the majority of people were resettled in developed countries such as the United States and Australia, Canada, Italy, and other European countries. However, tens of thousands were repatriated back to Vietnam either voluntarily or involuntarily by programs such as the Orderly Departure Program and the Comprehensive Plan of Action. This plan when enacted meant Indochinese refugees were no longer automatically considered for refugee status but screened and if found not to meet the refugee criteria were termed asylum seekers and those screened out would be repatriated back to Vietnam. Financial incentives and market reform in Vietnam saw many asylum seekers return voluntarily during the 1990’s. The Galang Island camp was also in 1993 included in the Batam Expansion Project and as such required the closing down of the camps and its 9,000 asylum seekers were encouraged to return to Vietnam of whom only 2,000 were willing to go back to Vietnam[12].
[12] Ugly sanctuary - Inside Indonesia: The peoples and cultures of Indonesia, accessed 23 March 2025.
59.The UNHCR notes a paper[13] from the Canada: Immigration and Refugee Board of Canada dated 1 September 1997 addressing the treatment of returnees to Vietnam listed 109,199 Vietnamese had returned to Vietnam by 1997. A memorandum of understanding signed between the Vietnamese government and the UNHCR in 1988 guaranteed the assurance that all returnees would be treated humanely and not be subjected to intimidation or harassment. Returnees were given a complete pardon for their illegal departure unless they had committed prior criminal offences. In 1997 UNHCR monitors were in Vietnam to assist in the integration of the returnees helping them with financial assistance and investigating allegations of harassment, mistreatment, or persecution by Vietnamese authorities. Each returnee was supplied with a cash grant and access to business training course and micro loans for small business establishment. The report does note that eighty-nine returnees have been arrested and detained on criminal charges since 1989. This information was raised at hearing with the applicant for his comment. He agreed he was provided with a three hundred US dollar payment.
[13] [ARCHIVED CONTENT] Refworld | Vietnam: Information on the treatment of returnees, accessed 23 March 2025.
60.The report further notes the UNHCR is not aware of any arrest or detention of returnees for their political or religious activities in the camps outside of Vietnam. It is known that some camp activists may have been subjected to questioning by government officials in transit centres on their return to Vietnam. In the UNHCR’s view this does not rise to the level of persecution. There has been a particular focus on returnees who have worked with foreign companies or were leadership roles in the camp communities or engaged in anti-Communist activities. [14]
[14] ibid
61.The Tribunal acknowledges the extreme difficulty citizens of Vietnam faced in fleeing their homeland from 1975-1993.TheTribunal has carefully examined country information regarding the return of asylum seekers to Vietnam and notes the monitoring of such returnees by the UNHCR up until 1997 for harassment, persecution, and mistreatment. It further notes a small number of returnees were reported to have been arrested and detained since 1989 and these were usually for criminal offences committed prior to fleeing Vietnam. The applicant was not arrested or detained and had no prior criminal history before fleeing Vietnam.
62.As such the Tribunal does not accept the applicants claim that up until he left Vietnam in 2022, he was being harassed, summonsed, and threatened with arrest and detention as consequence of him being a voluntary repatriation asylum seeker some 30 years prior. The Tribunal does not accept the applicant was monitored whenever he left for work and when he returned from Australia in the past. The Tribunal does not accept the applicant was monitored for the reasons he claims that being a repatriation asylum seeker returning to Vietnam in [Year]. The Tribunal does not accept the applicant was monitored on his return to Australia for the reasons he claims, that being a repatriation asylum seeker in [Year]. Therefore, the Tribunal does not accept this monitoring will happen to him again if he were to return to Vietnam in the reasonably foreseeable future, for the reasons he claims, that being a repatriation asylum seeker in [Year].
63.Further, the tribunal does not accept the applicant is at real chance of harm from police and or local authorities for being a voluntary repatriation asylum seeker who returned to Vietnam in [Year], if he were to return to Vietnam in the reasonably foreseeable future.
Fear of harm as a suspected anti-Communist government activist
64.The applicant has consistently stated he has feared and continues to fear he will be arrested and detained if he were to return to Vietnam in the reasonably foreseeable future as he has previously been ‘summonsed for interrogation’ when he has been away from his home working and did not have the appropriate paperwork to do so. He also states he has been ‘questioned’ on his return to Vietnam in [Year] from [Location] and in 2007 and in 2017 on his return from two holiday visits to see his brother in Australia. These events of questioning, he states, were around his possible involvement in anti-Communist government activities and sentiments expressed as he states in his written evidence, a statutory declaration dated 1 October 2022 as referenced at paragraph 32 above. The Tribunal does not accept the applicants claims that he fears arrest and or detention or summonsing for interrogation for possible involvement in anti-government activities now or in the future.
65.The applicant stated there was no reason for this questioning and or suspicion as he had never engaged in any anti-Communist government activity or expressed publicly any such sentiment. He has never been arrested or detained about any such activity. He maintained however this questioning was because he had previously fled Vietnam in 1989 and as such this was considered antigovernment sentiment. The applicant claims he has never had any involvement or connection with Viet Tan or Veteran ARVN (Armed Forces of Republic of Vietnam Organisations) in Australia or know their leaders. The Tribunal therefore does not accept the applicants claims regarding questioning and or suspicion for any involvement in any antigovernment organisations such as the Viet Tan or Veteran ARVN.
66.Viet Tan (Vietnam Reform Revolutionary Party) founded in 1982 and has operated as an outlawed underground organisation for the first two decades of its establishment. It is still considered a terrorist force in Vietnam although it is described by its chairperson as a public organisation with activities attempting to promote non-violent political change and democracy.[15]
[15] Vietnam declares California-based group terrorist | Reuters, accessed 23 March 2025
67.Veteran ARVN organisations were developed because of the Vietnam war and constituted by members of the South Vietnamese armed forces from 1955 to the fall of Saigon in 1975. After the war many of these troops were sent to re-education camps often for years and those who remained in Vietnam experience harsh discrimination.[16]
[16] Kaiser, Robert (May 15, 1994). "SURVIVING COMMUNIST 'REEDUCATION CAMP'". The Washington Post. Accessed 23 March 2025.
Form 681 - Application for refugee and special humanitarian proposal consideration
68.The applicant has asked the Tribunal to consider his visa status in Australia on the grounds of a Global Special Humanitarian Visa (subclass 202).The subclass 202 Global Humanitarian visa is available to people not in Australia (‘offshore’) and are subject to substantial discrimination amounting to a gross violation of human rights. Applications for visas under the Special Humanitarian category must be proposed by an Australian citizen, permanent resident, an eligible New Zealand citizen or an ‘Approved Proposing Organisation’. This Review before the Tribunal is to determine his suitability for a Protection visa and as such, it is beyond the scope of the Tribunal’s decision making, to address the applicant’s suitability for this visa
Does the applicant satisfy the refugee criterion for protection?
69.To determine if the applicant satisfies the refugee criterion for protection the Tribunal must consider Is there a real chance of harm if the applicant were returned to their home area of the receiving country in the reasonably foreseeable future.
70.The Tribunal has considered all the documentary evidence, the applicant and the witness’s oral evidence at hearing and the post hearing submissions.
71.The Tribunal accepts the applicant is a member of a ‘particular social group,’ namely ‘voluntary repatriation asylum seekers from Indochina.’ However, the Tribunal does not accept the applicant is at real chance of harm if he were to return to Vietnam in the reasonably foreseeable future. The Tribunal finds there is no real chance of harm to the applicant for reasons of belonging to any other particular social group, nationality, political opinion, race or religion.
Does the applicant satisfy the complementary protection criterion?
72.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). As the Tribunal has found there is no real chance of harm of any kind, there is no real risk, as the real chance and real risk tests are the same.
73.The applicant does not meet the alternative criterion in s 36(2)(aa) and is not considered a person to whom Australia owes complementary protection obligations.
CONCLUDING PARAGRAPHS
74.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).
75.Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
76. There is no suggestion that the applicant satisfies 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
77.The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…
0
2
0