2315957 (Refugee)

2315957 (Refugee) [2024] AATA 4073 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Duc-Dung (Yung) Tran (MARN: 0319577)
CASE NUMBER: 2315957

COUNTRY OF REFERENCE: Vietnam
MEMBER:Nora Lamont
DATE:9 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 October 2024 at 11:04am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – Viet Tan member – religion – Catholic – particular social group – returned asylum seeker – employment – protests against the government – fear of detention – fear of killing – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 46A, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCFCA 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 September 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 citizen of Vietnam, applied for the visa on 12 May 2016.
The applicant appeared before the Tribunal on 30 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] from the Viet Tan, and [Witness B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant’s migration and visa history is summarised as follows:
·[April] 2013 Arrived by boat.
·16 October 2014 was granted a Temporary Humanitarian Stay Visa.
·25 May 2015 granted bridging visa E.
·21 April 2016 granted bridging visa E.
·19 September 2016 granted bridging visa E.
·15 December 2016 granted bridging visa E.
·30 March 2017 granted bridging visa E.
·19 June 2017 granted bridging visa E.
·7 August 2020 Safe Haven Enterprise Visa found to be invalid.
·1 September 2020 Applied for Safe Haven Enterprise Visa.
·24 September 2020 granted bridging visa E.
·10 February 2021 Safe Haven Visa refused.
·9 February 2023 Refusal decision affirmed at the AAT.
·[March] 2023 Safe Haven Enterprise Visa found to be valid – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCFCA 63.
·11 September 2023 Safe Haven Visa refused.
·30 September 2024 applicant appeared before the Tribunal.
The Department previously found that the application made on 19 June 2017 was invalid because of the section 91K of the Migration Act 1958 application bar. This was because the applicant had been granted and held a Humanitarian Stay (Temporary) (UJ-449) Visa since they had last entered Australia.
On 4 May 2021, the Full Federal Court handed down a judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20[1]. In that case, the Full Federal Court found that the Minister’s decision to grant a UJ-449 visa to a person who entered Australia by sea, directly to the mainland before 1 June 2013 without a valid visa, was invalid. This was because the decision to grant the visa was based on the mistaken belief that that the person was an unauthorised maritime arrival (UMA) within the meaning of section 5AA of the Migration Act, and therefore subject to the operation of section 46A, when they were not in fact an UMA.
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCFCA 63.
The decision to grant the applicant a UJ-449 visa on 16 October 2014 is affected by the Full Federal Court judgment and as a result, section 91K did not prevent the applicant from making a valid application for a Safe Haven Enterprise (subclass 790) visa. Following the Full Federal Court judgment, the Department reassessed the application made on 19 June 2017 and determined it as valid, before ultimately making a decision to refuse to grant the visa on 11 September 2024.
That decision is the subject of this review.
Submissions
The Tribunal has the following submissions before it:
·Legal submission from the applicant’s representative.
·Letter from [Person A] supporting the applicant’s claims for protection.
·Applicant’s statement dated 16 June 2017.
·Invitation to attend a Viet Tan event.
·Evidence of the applicant’s involvement in the Viet Tan.
·Letter from [Representative A] Viet Tan Representative.
·Letter from [Witness B] confirming the applicants claims in Vietnam.
·Photos of the applicant and his partner at Viet Tan events.
There are no non-disclosure certificates on the applicant’s file.
The applicant arrived by boat and did not have any identification documents. He has consistently claimed to be a national of Vietnam. The Department found him to be a national of Vietnam and the Tribunal has also assessed his claims against Vietnam as his country of nationality and his receiving country.
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 applicant was born on [date] in Nghi Loc in Nghe An province, Vietnam. He comes from a large family with [specified family members]. His father is deceased, but his mother remains with his siblings in Vietnam. He was married with [number] children. The applicant is currently in a relationship with a Vietnamese woman, and they live together. He operates his own [business]. He completed [number] years at University in Vietnam and received a [qualification].
The applicant’s claims as summarised and as follows:
·The applicant took Christians to church to pray in July 2012. The Government surprised many people in that church. The government asked him to the office to ask why he took people to the church to pray. They kept him there for one session. After that, they asked the applicant to return for more questioning, so he ran to South Vietnam and lived in Binh Duong.
·Catholics have no human rights, recently the Government kept two people without reason.
·In July 2012 the applicant drove the catholic people of his area to [District 1] Church. He often attended [District 1] Church to worship.
·Whilst there some people who were praying within the group started to throw rocks at the ununiformed police. The applicant later found out they were undercover police.
·The Vietnamese army, police and security of the church began fighting with the Catholic group. The applicant left the church to avoid being involved. He went to his car and drove a safe distance away.
·The applicant was driving home when police stopped him and questioned him by the side of the road. He was allowed to go. The following day the police went to his home and asked him to attend the local government office. He was interviewed about the previous day. He did not provide a statement as he did nothing wrong. He was questioned for five hours and released.
·A few days later police came to the applicant’s house asking him to attend the local government office. He was again interviewed and was told if he wanted to work in the area again, he had to do what they wanted.
·In early August, police again told the applicant to report. He did not attend; he was worried he would be arrested.
·Later, the applicant attended a protest in Nghe An Province against the Government because they tried to prevent Catholic people from going to Church and praying.
·The applicant was afraid of being arrested and had to leave, he went into hiding in Binh Duong around early August and stayed there until early 2013.
·The applicant is fearful he will be accused of organising the fight at the church. The law in Vietnam means they will be able to charge him for taking people to a particular area to pray.
·The community asked the applicant’s mother and children if he was the organiser of the fight.
·The applicant fears the Vietnamese Government know he has sought asylum in a western country. As a result, he is scared the police will attack him as they know he has spoken out against them. It is against the law in Vietnam to leave and seek asylum in another country.
·Authorities in Vietnam are targeting the applicant and have a warrant out for his arrest.
·The applicant was affected by the data breach. He fears the Vietnamese Government has access to his records and will know he is seeking Asylum in Australia. He fears this puts him at greater risk of being known to the Vietnamese Government.
Tribunal Hearing
The applicant said that he did [number] years at university and studied [subject] gaining a [qualification], however when he finished the government did not give him a job as he was Catholic. When asked how he knew they didn’t offer him a job because he was Catholic, he said that he was told by the assessor that he could not apply as he was Catholic. When asked if he was able to get a job in the private sector and asked why he wanted to work for the government anyway he said he wanted to work for the government so he could help the citizens. He ended up working with his family. Then he was a freelance labourer.
The Tribunal asked how he made the arrangements to come to Australia. He said it was by chance. He said he was hiding from the local police, and he was with his cousin drinking coffee and he heard someone speaking about Australia and he got the phone number. He said it cost [amount] Dong for three people, himself, his brother-in-law, and his nephew. When asked if he knew anyone here in Australia he said no, this just happened by chance, and he needed to escape. His wife at the time just wanted him to get out as people were stalking the house.
Catholic
The applicant was asked about being Catholic. He said he was baptised after his birth and went to church every Sunday at [Town 1]. He said his whole family attended church and were religious. He said he did religious studies and made his confirmation when he was 14 or 15 years old and his first communion when he was 8 or 9 years old. When asked who taught bible classes, he said that the father at the church taught the classes. He said he celebrated Christmas and Easter in Vietnam and that they would make a Christmas tree and little Bethlehem.
The applicant said that he goes to church at [Church 1], and he has been going there for the past two years. He said he knew a priest from [another city] who came to Vietnam to do charity work. His name was [Father A].
Given the discussion around the applicant’s religion the Tribunal accepts that the applicant is a catholic and that he practised his religion in Vietnam and continues to practice today.
Incident at [District 1]
The Tribunal asked the applicant why he claims he was in [District 1] at the church when he did not live near it, and it was not near his home area. He said there was a Bishop he knew, and they shared information and asked people to pray on it. He got the news that the authorities were stopping the priests from doing mass and it was in July. The police and the military came to destroy the Jesus stature.
This happened on [a day in] July, and he had twelve people with him, and they went to [District 1] and there were many people there, police those in uniform and those not in uniform. The military they were there. They wanted everyone to disperse, and they assaulted people. They threw stones at people. The applicant said he was not assaulted, and he ran to his car, but the was spilt up from the people he had come with, and the police checked his paperwork and let him go.
The next day he received a notice that he must attend the police station. He arrived at the police station, and they took him into a room and questioned him, they wanted him to admit his guilt about the disorder. They threatened to kill him, but they didn’t have enough evidence. They kept him for 5 hours and they threatened to kill him. The applicant said people started stalking his house. In August of 2012, he participated in a protest against the governments ban on Catholic people from attending church. He got another summons and started to get scared about the authorities and the people who seemed to be stalking the house, so he fled to the south.
The Tribunal notes that the applicant’s claims have been consistent since he first arrived some 11 years ago. He has had some inconsistencies but that is to be expected over such a large period of time, with a language barrier and very little representation. Taking all these factors into consideration and given his continued consistency and political expression with the Viet Tan and the Vietnamese community the Tribunal accepts that the applicant was in [District 1] and was then a subject of the police and authorities.
The Tribunal asked him why he left Vietnam, and he said I want to have freedom and I want others to have freedom, but he couldn’t be free. Going to jail makes you ostracized in the community even if you didn’t do anything. He said once he got here, he started researching on the topics of fraternity for democracy, the Vietnamese community and then Viet Tan and he decided to join Viet Tan in 2019.
The applicant told the Tribunal he believes that they are still looking at him from the event in 2012, it was public disorder. Then since he is now involved in the Viet Tan, and he has been publicly displayed on the Viet Tan [social media] page.
Viet Tan
The applicant became politically active with the Viet Tan and the Vietnamese community after he settled down in Australia. He did not speak English that well, was not represented for a large part of his application process and was easily confused. He started researching and joining activities once he had adopted to his new life. He put in his application to join the Viet Tan right before COVID hit and there has been a significant delay in his application. However, he continues to participate in their activities and hopes to become a member very soon.
The Tribunal found the following country information on the Viet Tan from their website. [2]
Modernizing Vietnam has been the aspiration of Vietnamese for many generations. In the 19th century, Vietnam lost its independence because it was unable to adapt to changing conditions. For much of the 20th century, the country was torn apart by war and did not enjoy true peace even after unification. Now in the 21st century, Vietnam has the potential of becoming an economic tiger, but the Vietnamese people find themselves restrained by a backward dictatorship.
Viet Tan believes that comprehensive development is only possible when political institutions allow for the contributions of all citizens. A pluralistic society is the best way to realize social justice and human rights for all citizens. Therefore, it is Viet Tan’s mission to overcome dictatorship and build the foundation for a sustainable democracy.
To achieve a democratic transition for Vietnam, Viet Tan is committed to peaceful, nonviolent struggle. Working with other pro-democracy groups inside Vietnam and among the diaspora, we aim to mobilize the power of the people.
We are convinced that nonviolent means are most effective for generating maximum civic participation. Because Viet Tan’s ultimate goal is to contribute to Vietnam’s modernization and reform (or Canh Tan, the basis of our party’s name in Vietnamese), we reject the use of violence. Given Vietnam’s recent history and current challenges, the struggle to overcome dictatorship cannot lead to further divisions among compatriots or hamper efforts to rebuild the country.
We embrace a humanistic vision of Vietnam where each person is valued and has the opportunity to flourish. In short, Viet Tan seeks to unleash the talents and aspirations of the Vietnamese nation.
Viet Tan engages in actions that empower the Vietnamese people. Specifically, we seek to roll back existing restrictions against two key human rights: freedom of expression and freedom of association and assembly. These enabling freedoms are the pillars for civil society.
[2] Introduction - Viet Tan (EN)

In 2016 the Vietnamese government stated that the Viet Tan was a terrorist organisation. [3]
HANOI (Reuters) - Vietnam has declared a U.S.-based activist group a terrorist organization and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished. The government said the California-based Viet Tan, or Vietnam Reform Party, had recruited and trained operatives to use weapons and explosives.
Vietnam has long been sensitive to the activities of Viet Tan, calling the group "reactionaries" but the announcement carried on state television was the first time it had designated it a terrorist organization.
[3] Vietnam declares California-based group terrorist | Reuters
DFAT reports that Vietnam is a one-party state (Communist) and other political parties are illegal. [4]
[4] DFAT Country Information Report Vietnam 11 January 2022.
Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.
It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted. See also Online activists and Land and environmental disputes.
Given the applicant’s evidence on his participation with the Viet Tan, and the corroborating evidence from the membership of the Viet Tan, the Tribunal accepts that the applicant has an anti-government political opinion that formed when the applicant was in Vietnam based on his religion as Catholic and continues to this day. The Tribunal is satisfied that the applicant would be the target of the authorities should he return to Vietnam given his background both in Vietnam and with his participation in the Viet Tan.
The Tribunal has considered that the harm feared by the applicant is from the government authorities and that it amounts to serious harm as described in s5J(5) of the Migration Act. The Tribunal also considers that the essential and significant reason for the harm feared is the applicant’s antigovernment political opinion which formed when he was in Vietnam as a Catholic and after he arrived in Australia and became involved in the Viet Tan and continues to this day and this significant harm is systemic and discriminatory.
Given that the fear of harm is from the government, the Tribunal is satisfied that there is nowhere within Vietnam that the applicant can live where state protection would be available to him. The Tribunal finds that the real chance of persecution relates to all areas of Vietnam.
The applicant would need to modify his behaviour so as to avoid a real chance of persecution in Vietnam and this would be a conflict with a characteristic that is fundamental to his identity as he would have to conceal or alter his political beliefs in order to avoid the persecution he fears. For these reasons the Tribunal finds that the applicant faces a well-founded fear of persecution on return to Vietnam for reasons of his anti-government political opinion by the state.
Therefore, the Tribunal is satisfied that the applicant has a well-founded fear of persecution and for the purposes of s36(2)(a) of the Migration Act the applicant is a person to whom Australia has a protection obligation.
As the Tribunal has found the applicant to be a person to whom Australia has a protection obligation the remaining claims and issues have not been considered.
As the Tribunal has found the applicant to be a refugee there is no need to consider the alternative criteria in s36(2)(aa) of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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.
…

[2024] AATA 4073

9 October 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction