2440136 (Refugee) - [2025] ARTA 1127

2440136 (REFUGEE) [2025] ARTA 1127 (15 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2440136
Tribunal:General Member K Hoang
Date:15 January 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 15 January 2025 at 5:11pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – involvement in protests in Australia – was never harmed in Vietnam – applicant has not engaged in any political activities in Vietnam – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 56, 65, 367, 499
Migration Regulations 1994, Schedule 2
Any 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 Home Affairs on 17 October 2024 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 10 September 2024. 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 under either the refugee criterion or complementary protection criterion.
On 29 November 2024, the Tribunal invited the applicant to attend an in-person hearing on 12 December 2024, at the Tribunal’s Brisbane registry. At the relevant time, the applicant was in detention at Brisbane Immigration Detention Centre.
On 4 December 2024, the applicant requested an adjournment of the hearing for one month, citing that he ‘had a very bad migrane and will not be able to perform well at a hearing’. He further requested for the hearing to be moved to Sydney because his father and ‘wife’[1] wanted to join the hearing, and they could not travel by air due to their disability.
[1] While the applicant referred in his correspondences to his ‘wife’, he confirmed at hearing that they were not married and claimed they were in a de-facto relationship. I have, therefore, referred to this person as his ‘partner’ throughout the decision.
On 5 December 2024, the Tribunal responded to the applicant advising that it had declined the applicant’s request for an adjournment. The applicant was informed that:
The Tribunal will ordinarily not adjourn the Hearing unless it considers that there are good reasons to justify the adjournment. If you wish to seek an adjournment for medical reasons, please provide a doctor’s certificate that states you are not able to attend the scheduled hearing and the reasons why.
Further, the Tribunal informed the applicant it could arrange for his ‘wife’ and father-in-law to attend the hearing remotely via video. The applicant was advised that if he wished for the Tribunal to take witness evidence from them, he should state this in his hearing response form, and indicate how their evidence would be relevant to his case. The applicant responded on 6 December 2024, stating that he was not sure how to obtain a medical certificate. The Tribunal responded on the same day and reiterated previous advice given to him that the Tribunal would ordinarily not adjourn the hearing unless it considers that there are good reasons to justify the adjournment. The applicant was advised again that if he had further reasons or documents to justify an adjournment, these materials should be provided to the Tribunal as soon as possible.
On Monday 9 December 2024, the applicant wrote to the Tribunal stating that he does not feel well in detention. No further medical or other evidence was provided in support of a request for adjournment. The applicant provided further submissions in support of this claims, as detailed further below.
On 12 December 2024, the applicant returned a completed ‘response to hearing’ invitation form confirming his attendance at hearing. The applicant requested the Tribunal take evidence from his ‘wife’ and ‘father-in-law’. He did not indicate on the hearing response form that there were any issues that would affect his ability to participate in the hearing.
The applicant appeared before the Tribunal on 12 December 2024 in person to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant’s partner and her father were present during the hearing via MS Teams as support persons. For the reasons set out further below, I did not find it necessary to take witness evidence from them.
Having conducted the hearing, I am satisfied that the Tribunal has given the applicant a meaningful opportunity to present evidence and arguments in support of his case.
The applicant was not represented in respect of the review.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is now [age] years old. He was born in the Hai Phong province in Vietnam where his family, including his parents and brother still reside. His family own a house in Hai Phong where the applicant grew up. He has not resided in any other part of Vietnam.
The applicant completed high school in Vietnam, but left Vietnam when he was [age] years old. At the time, he did not complete his university [studies]. The applicant never worked in Vietnam.
The applicant arrived in Australia on [date] August 2016 to study. According to his protection visa application, he studied [at] [a] College and later at [a university]. At hearing the applicant confirmed that his student visa ceased in 2017. The applicant said that he moved from Adelaide to Sydney, but he could not obtain certificate of enrolment to study, and he lost his visa. The applicant confirmed that he was unlawful until the time he made his application for protection. He said that he had been working [in] Sydney in order to support himself. The applicant confirmed that he had lodged a partner visa application which was found to be invalid.
The applicant has not travelled back to Vietnam since arriving in Australia.
RELEVANT LAW
The relevant law governing the criteria for the grant of a protection visa are set out in the Attachment.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
In his application for a protection visa, the applicant made claims that can be summarised as follows:
·he left the country because the communist party will harm any person who protests against them;
·he saw police hit ordinary citizens when they did not like these people;
·he fears being arrested, terrorised, locked up and tortured to death if he returns to Vietnam because he joined in a protest against the Vietnamese communist party and his photos were taken by a secret agent from the Vietnamese government who operates in Australia;
·his family in Vietnam have advised him that the police have visited his house asking when he will return, and they wanted to question him about why he joined the protest; and
·he cannot move to another part of Vietnam because there is only one party in Vietnam.
The applicant was not offered an interview with the Department.
On 27 September 2024, the Department sent the applicant an invitation to provide further information in respect of his claims pursuant to s 56 of the Act. The invitation advised the applicant that his claims lacked substantiating details, such as dates and locations, and details of events, and that no further evidence to support his claims had been provided. The applicant was asked to provide further information and evidence in respect of his political opinion and activities in Vietnam or in Australia.
The applicant did not respond to the Department’s s 56 notice.
The applicant was not interviewed by the Department.
The delegate found that the applicant’s claims are not genuine and lacked credibility. The delegate was not satisfied that the applicant is a refugee under s 5H(1) and found he is not a person in respect of whom Australia has protection obligations under s 36(2)(a). Nor was the delegate satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act. As such, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Evidence before the Tribunal
Pre-hearing submissions
The applicant provided the following materials prior to the hearing:
·copies of Australian passports belonging to his partner’s sister, [Ms A] and his partner’s father Mr [B];
·translated marriage certificate in respect of [Ms A];
·copies of a driver licence, [Country 1] passport and pension card, belonging to his partner, [name];
·a medical letter stating that the applicant’s partner had a microarray analysis completed;
·a Visa Entitlement Verification Online (VEVO) check in respect of his partner;
·a translated copy of his partner’s birth certificate and a copy of the original;
·a copy of a passport belonging to his partner’s sister son, [Master C];
·a birth certificate in respect of [Master C];
·a commonwealth statutory declaration from the applicant’s ex-roomate in support of his relationship with his partner;
·a commonwealth statutory declaration from the applicant’s partner’s sister in support of their relationship;
·a translated copy of the applicant’s birth certificate;
·a copy of the delegate’s decision record in respect of the applicant’s application for protection and the Department’s notification letter;
·a ‘Form 888 – Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ from the applicant’s partner’s sister;
·a ‘Form 888 – Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ from the applicant’s ex-roommate [name];
·translated and original copies of the applicant’s household registration booklet;
·national ID documentation in respect of the applicant’s parents in Vietnam;
·a copy of the applicant’s driver’s licence;
·a document from [a bank], confirming that as of 23 October 2024, the applicant’s mother has 250 million Vietnamese Dong (VND) in three bank accounts;
·a statement from [a] bank, dated 22 October 2024, showing that the applicant’s mother has 1,040,000,000 VND or the equivalent of $25,090 US dollars (USD) held in a number of term deposit accounts;
·a statement from [a] Bank certifying that as of 24 October 2024, his mother had 2,000,000,000 or the equivalent of $116,090.09 Australian dollars (AUD) held in two accounts;
·a statement from [a] Bank dated 23 October 2024, showing that his mother has a total of AUD $26,194.21 in a term deposit;
·a copy of the applicant’s Vietnamese passport; and
·a signed statement from the applicant in support of his relationship with his partner, undated.
a.The applicant explained that the had submitted the above information because his partner’s sister has recently married a [Country 1] man and has to return to [Country 1] in the foreseeable future. The applicant submitted that his partner’s sister has been looking after his partner and her father in the applicant’s absence. He is worried that if his partner’s sister were to leave Australia, there would be no one to look after his partner and her father. He stated that this situation makes him worried. The applicant claimed that his mother has enough money to be able to support him and his partner in Australia.
Further, the applicant sent two emails to the Tribunal on the morning of the hearing. In one email, he claimed that Vietnamese communist had come to their home to look for him and his parents told him not to go back or he will be prosecuted. A further email stated that, he could not return ‘because they have evidence that I am participating in the protest and that they have a photo of me stepping on the Communist's flag which they believed I have no respect for the communist and that they believed I should be prosecuted’.
The hearing
The applicant said that while detention, someone had helped him to make his protection visa application. This person was his roommate who asked him about his experiences and helped him to fill out the form. When asked if he knew what the claims in his protection visa application were, he said that it was about a refugee visa and his fear that people will come and arrest him. I asked the applicant why he had not responded to the Department’s s 56 notice and the applicant said he did not know that the Department had asked him for further information.
Political opinion claims
I asked the applicant why he opposed the Vietnamese government, and the applicant said it was because they abused the law and took advantage of people. He confirmed that he had never expressed a political opinion against the Vietnamese government while he was in Vietnam. The applicant said that he was never harmed in Vietnam because of any political opinion.
When asked how he was able to depart Vietnam lawfully if the authorities had any interest in him, the applicant said he did not suffer any harm, but he had witnessed many cases, for example, when someone infringed traffic rules and did not provide any evidence, they would be fined. He said that officials abuse their powers to go into people’s homes where it is beneficial to them.
I asked the applicant about whether he was involved in any group promoting freedom and democracy in Vietnam. The applicant said he did not remember being involved in any group in Vietnam. When asked further, the applicant confirmed that he was not involved with any group in Vietnam.
I asked the applicant why he feared going back to Vietnam. The applicant said that in 2019 he was part of a protest in Sydney and after that someone contacted his family in Vietnam and asked about him. He said that he was scared to go back home because people had come to his parents’ home every few months asking them when he will be back.
When asked for more information about the protest in 2019, the applicant said he went to a protest in August 2019 in the CBD. When asked whether he knew what the protest was about and why he had joined, the applicant said he did not know there was a protest taking place. He said he had gone to the city to ‘enjoy himself’. He was in the CBD with a friend and happened to join the protest. When asked how long the protest went for the applicant said he did not stay at the protest for very long.
The applicant said it was around 2019 that his mother told him that people had come looking for him, and every few months people had come back to look for him. I put to the applicant his evidence that he did not know what the protest was about, and I asked him why he thought the Vietnamese government would be interested in it. The applicant said the government had officials who came to the protest and that caused him concern. I asked the applicant if the people who came to his parents’ house to ask for him had told his parents why they were interested in him. He said his parents had never told him why they were interested in him. He further confirmed that his family had not been harmed in any way.
I asked the applicant what he thinks would happen if he were to return to Vietnam now or in the reasonably foreseeable future. The applicant said he had read many stories of people who attended protests and rallies that were arrested and harmed. He says that he will be arrested and harmed, and further claimed that the family of the person who helped him lodge his protection visa had experienced similar things. When asked if he would say anything against the Vietnamese government, were he to return, the applicant said he is not brave enough to say things against the government and he would not do so. He said that he dared not go back to Hai Phong because he will be arrested.
Towards the end of the hearing, I raised with the applicant my concerns that he could not tell the Tribunal much about the protest he had attended, what it was about, or why the Vietnamese government would be interested in him. I said to the applicant that this might lead me to question whether he had attended any protest. The applicant responded that he saw the former Vietnamese flag, so he knew that it was against the communist, but he did not know much more than that.
I raised my concerns with the applicant that he had told the Tribunal that he was never harmed in Vietnam, that his family had not been harmed, and that he had not expressed any political opinion against the government, and I explained that I might have doubts that government officials had come looking for him because of his involvement in protests in Australia. The applicant reiterated that he will be arrested at the airport if he were to return, and he said that his mother had told him that they have evidence that he had participated in the protest.
I further raised my concerns with the applicant that, notwithstanding the country information on political opinion in Vietnam, that his evidence suggests that he might not have a profile or that he would engage in political activity that would put him at risk of persecution were he to return in the reasonably foreseeable future. The applicant did not provide further comment.
The applicant’s family
I asked the applicant about the information he had provided to the Tribunal about his family and why this was relevant to his claims for protection. I explained to the applicant that the Tribunal’s task is to assess his claims for a protection visa, and not a partner visa.
The applicant confirmed that he is in a de facto relationship with his partner, and that the relationship commenced in 2020. He said that he needs to remain in Australia to look after this partner and her father. He said that his sister-in-law will need to return to [Country 1] next year and if he were to depart Australia, there would be no one to look after them. The applicant confirmed that his partner’s sister and father are Australian citizens, but his partner is not an Australian citizen.
I raised with the applicant my concerns that separation from family members left behind in Australia was unlikely to meet the refugee or complementary protection criterion. The applicant responded that his partner has a low IQ, and that her father is blind and needs help. I noted that the applicant had provided information that his mother has money which he said could be used to support him in his partner in Australia, and I asked the applicant whether such support could be provided if the applicant were to return to Vietnam. The applicant said that his mother is ready to give him money to take care of his partner and her father and that he cannot live without them.
I note that the applicant had requested the Tribunal to take witness evidence from his partner and his partner’s father. It was confirmed at the start of the hearing that those individuals required an interpreter in the [Country 1] language, but the Tribunal did not have such an interpreter arranged. I explained to the applicant that I would first hear his evidence and if I considered that it was necessary for the Tribunal to take witness evidence from his partner and her father, a further hearing would be arranged. However, after hearing the applicant’s evidence, I confirmed with him that neither his partner nor his partner’s father could give any witness evidence about his experiences in Vietnam or his claimed attendance at the protest in 2019. The applicant agreed with that assessment. Accordingly, I informed the applicant that I did not consider it necessary to take witness evidence from them. The applicant confirmed that he understood.
COUNTRY INFORMATION

According to DFAT’s 2022 Country Information Report, Vietnam is a one-party communist state:[2]
2.28 Vietnam is a one-party communist state. Communist Party of Vietnam (CPV) members hold all senior government and military positions. The National Congress is the CPV’s largest national decision making body. It meets every five years. The most recent Congress was in January/February 2021 and comprised 1,600 delegates. These delegates elected the 200-member Central Committee (the second highest decision-making body that meets twice a year) which, in turn, elected the (currently) 18-member Politburo, Vietnam’s most powerful decision-making body.
[2] Department of Foreign Affairs and Trade, Country Information Report Vietnam, 11 January 2022, p 11.
DFAT further reports in respect of those with anti-government opinions:[3]
[3] Department of Foreign Affairs and Trade, Country Information Report Vietnam, 11 January 2022, pp 18-19.
3.49 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.
3.50 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.
3.51 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.
3.52 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 .
3.53 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.
3.54 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.
3.55 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.
3.56 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.
3.57 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.
REASONS AND FINDINGS
Applicant’s identity and receiving country
Based on a copy of the applicant’s Vietnamese passport available on the Tribunal’s file, I find that Vietnam is his country of nationality and his receiving country for the purposes of refugee and complementary protection assessments.
Findings of fact
In assessing the applicant’s case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims,[4] and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[5] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.
Consistent with the applicant’s evidence at hearing, I find that the applicant has not engaged in any political activities in Vietnam and nor did he suffer any harm in Vietnam from the government.
I do not accept the applicant’s claims that he will be arrested and harmed if he were to return to Vietnam because of his involvement in a protest in 2019. The applicant’s evidence in this respect was vague and unconvincing. His evidence that he just happened to be in Sydney CBD when the protest occurred, suggests that he had no prior knowledge of the protest or what it was about. The applicant has not provided any corroborative evidence that such a protest occurred. He could not elaborate on how long the protest went for. At hearing, he could not explain why the Vietnamese government would have been interested in the protest, and I found his explanation in response to my concerns, that he saw the former Vietnamese flag at the rally, so he knew it was against the government, to be unconvincing. I do not accept the applicant’s claims to have attended a protest in 2019 and nor do I accept that Vietnamese secret agents took photos of him ‘stepping on a Communist flag’ at the protest.
It follows that I do not accept the applicant’s claims that his mother had advised him that officials had come looking for him at their house, because they had evidence against him. I note that this was at odds with his evidence at hearing that he his parents did not tell him why people were after him. I do not accept that Vietnamese officials have an interest in the applicant for reasons of his attendance at a protest in August 2019, or for any other reasons. I do not accept that Vietnamese officials have come to his parents’ house to ask for his whereabouts.
The applicant’s evidence suggests that he had not been engaged in any political activities up until the time he claimed to have been involved in the protest — some three years after arriving in Australia — nor has he been involved in any political activities since.
Refugee findings
Looking into the reasonably foreseeable future, I do not accept there is a real chance that the applicant would be arrested and harmed if he were to return to Vietnam. I find that if returned to Vietnam, the applicant would return to the region of Hai Phong, where he previously resided. Having regard to the country information above, and the applicant’s evidence at hearing, I do not accept that he would engage in any political protests or activities that would put him at risk of persecution by the Vietnamese government. I do not accept that the applicant has any political profile that would attract the attention of the Vietnamese government upon return to Vietnam. I am not satisfied there is a real chance the applicant would face any harm in Vietnam for reason of his political or imputed political opinion. The applicant’s claims are, in this respect, not well-founded.
With respect to the applicant’s claims that he does not wish to return to Vietnam due to separation from his partner, and the potential impact on both him and them, I find that such a claim does not give rise to persecution. I have considered the materials that the applicant has submitted in respect of his relationship with his partner. I note that this material appears to have been prepared in support of a partner visa application. I make no findings as to the genuineness of the applicant’s relationship for migration purposes, however, I will proceed to assess the applicant’s claims with respect to separation from his family members.
While I empathise with the applicant’s wishes to remain in Australia, his reasons for doing so do not attract Australia’s protection obligations. This is because claims that separation from family members is persecution does not meet s 5J(1)(b), which requires that the person be at risk of persecution if returned to the receiving country. Separation from one’s family members who remain in Australia does not relate to any agent of persecution in the receiving country, be it from a state or non-state actor. Nor does the claim involve any systematic and discriminatory conduct. Accordingly, the applicant’s claims fail to meet the refugee criterion.
Having considered the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant has a well-founded fear of persecution in Vietnam. He is not a refugee under s 5H(1), and is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection findings
With respect to complementary protection, I note that the courts have held that the ‘real risk’ test under s 36(2)(aa) imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[6] I have found above that the applicant does not face a real chance of harm were he to return to Vietnam for the claimed reason of political opinion or imputed political opinion. Based on my findings of fact, and for the same reasons above, I also find that the applicant does not face a real risk of significant harm for the reasons claimed.
[6] MIAC v SZQRB [2013] FCAFC 33.
With respect to separation from his family members, I have considered the judgements of SZRSN v MIAC and GLD18 v MHA, where the courts have confirmed that separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A).[7] In this respect, the complementary protection criterion is to protect non-citizens from harm faced in the receiving country. In this case, being separated from the applicant’s partner who remains in Australia, cannot be characterised as a harm faced in the receiving country. I find that separation from the applicant’s partner, as a consequence of removal, does not amount to significant harm as defined in s 36(2A).
[7] SZRSN v MIAC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58].
I have considered the applicant’s claims, individually and cumulatively. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm. I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dates of hearing(s): 12 December 2024
Representative for the Applicant: Unrepresented
Attachment — Criteria for 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.
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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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