1504811 (Refugee)

[2015] AATA 3257

1504811 (Refugee) [2015] AATA 3257 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504811

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Sydelle Muling

DATE:7 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 August 2015 at 2:28pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] March 2015.

3. On 24 July 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 6 August 2015, the applicant’s representative advised the Tribunal that the applicant did not wish to give oral evidence and that she consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. 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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

9. The applicant claims to be a citizen of Vietnam who was born in [his home village], My Xuyen district, Song Tran province, in Vietnam on [date].  She completed ten years education and is fluent in Vietnamese, She described her occupation before departing Vietnam as [occupation]. The applicant departed Vietnam legally [in] July 2013, travelling to Australia on a [temporary] visa.  Her mother is residing in Vietnam.

10. The applicant presented her claims in her protection visa application [in] February 2014 (folios 42 to 69 of the Department File [number]), a submission from her representative (folios 39 to 41 of Department File [number]) and a Departmental interview she attended [in] February 2015 (folio 131 of the Department File [number]).  The following is the statement made by the applicant attached to her protection visa application:

    I, [name] am writing this letter to ask you for the permission to stay in Australia. I resided in Australia [in] August 2013 as a holder of [temporary] visa subclass [number].

    My main purpose of coming to Australia is to provide assistance to my [aunty] during the time she gave birth to her new born child [several] months ago. However, the circumstance has changed significantly as describing below.

    My aunty has [other] children including the new born baby. Her eldest son [Son A] is now [age] who has been suffering [a disorder] since he turned three years old. He has [behavioural issues] related to his [disorder] which requires 24/7 caring. [Son A] is studying in [a special] class which is the class for students with the highest level of need and disability in [his school’s] Disability Unit

    My aunt's second child [named] is [age] years old who has [a medical condition] since she was a baby, which requires extra care and attention to manage her medical condition. She needs to be [given treatment] every two hours. The job was done by her mother or me at home and all her teachers also provide their help to look after her during the school time.

    It is impossible for my aunty to manage everything by herself. She has a son needs 24/7 care, a daughter requires close attention for her medical condition and another [age] baby

    The situation is even getting worse when my aunty was suffering from many health problems herself. The history of chronic [condition] in 2001, [another condition] in 2013 and the suffering from [a further condition] have brought her so down. [My aunty] must go to [a health] education class every fortnight. There is no way for her to be able to provide 24/7 care for her abnormally behavioral son and the other kids.

    Her [husband] is working full-time as [an occupation] at [company name] which is a seasonal business. The business is in the peak period and it is not viable for him to take leave to get extra care for his family. The absence of him at work will definitely cut off the only income of the family. Furthermore, his working hours is from

    midnight to 10 o'clock in the morning; therefore, my aunty has to take care of the [number of] children by herself. However, she can be fainted anytime when her [condition worsens]. It is too dangerous for an unpredictably [condition] woman, a [age] year old boy [with a disorder], a [age] year old [condition] girl and a [age] baby at home by themselves.

    I believe that my assistance can help the family a lot in the present situation and that's why I am so freaking out that if I have to leave Australia, how the situation going to get worse. That question has stated in my mind since I witnessed their problems by myself. I also have my own job in Vietnam to get back to but I know which one is more important for me to consider about now.

    If I have to go back to Vietnam now, the mishap of my aunt's family will hunt my mind down forever. I really feel guilty about it and I might go mental for that. Their situation is just so very bad. My aunty, the children and all her family really need me now and I just can't leave them behind and go back to Vietnam. It would make me really sad, worried and guilty for letting them down. I believe my help and guidance can maintain a harmonious home environment to ease the pressure on the family.

    I would like to ask the Australia Immigration to please grant me a protection visa to allow me to stay in Australia to continue supporting my aunt's family. I would really appreciate the given chance to stay here and I will try my best to help my aunt's family out their extremely bad situation. Thank you for your understanding.

11. The applicant submitted a number of documents in support of her application, including a letter dated [date] from  [a support agency] confirming that [Son A] has a diagnosis of [the disorder] and is registered for services with [that agency]; a letter from [Doctor B] ,the applicant’s aunt’s family doctor, dated [in] June 2013; a letter and report from [Doctor C], paediatrician, both dated [date], regarding [Son A’s] diagnosis and his care needs; a speech pathology report and guidance report for [Son A] from [an agency]; a [medical] report for [Son A] and a letter from [Doctor D], [Son A’s] doctor, dated [date].

12. The primary issue in this review is whether there is a real chance that, if she returns to Vietnam, the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The applicant travelled to Australia on a valid Vietnamese passport and she states that she is a national of Vietnam. Therefore for the purposes of the Convention, the Tribunal has assessed her claims against Vietnam as her country of nationality.

15. The evidence before the Tribunal is that the applicant is seeking to remain in Australia to assist her aunt with caring for her [children], including her eldest child [Son A] who has [a disorder] and requires considerable care. The applicant claims that her aunt is unable to cope with the demands of looking after [Son A], as well as her two other small children, particularly in light of her aunt’s own health issues. Her uncle, her aunt’s husband, works full time to support his family and is unable to take leave to provide any assistance in caring for the children, as he is the family’s only income earner and this would have significant financial impact for the family. The applicant claims that her aunt relies on her and without her assistance, the family’s situation will become worse.

16. While the Tribunal accepts that the applicant provides her aunt with a great deal of support and assistance in caring for her [children], in particular her aunt’s son [Son A] who has [a disorder] and requires a greater degree of care and attention, and that the applicant may experience feelings of distress and guilt if she is required to depart Australia, the Tribunal finds that there is nothing in the evidence before it to suggest that the applicant fears that she will be harmed if she returns to Vietnam, for any reason. The Tribunal finds that the applicant has not made any claims under the Refugees Convention. It therefore does not accept that the applicant has a Convention based subjective fear of persecution if she returns to Vietnam, now or in the reasonably foreseeable future. 

17. Similarly, the Tribunal finds that the applicant has not made any specific claims under the complementary protection provisions. As the applicant has not claimed that she is at risk of any harm in Vietnam, other than feeling sad, worried and guilty for letting her aunt and her aunt’s family down, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk she will suffer significant harm, as defined in s.36(2A) of the Act. 

18. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. 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).

20. 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).

21. The Tribunal notes that the applicant’s representative indicated in her correspondence with the Department that the applicant’s protection visa application is a pathway to request for Ministerial intervention. Neither the applicant or her representative have requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

22. Despite the absence of an express request to refer the case to the Minister, the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sydelle Muling
    Member