1505698 (Refugee)

[2016] AATA 4417

1505698 (Refugee) [2016] AATA 4417 (19 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505698

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:David Corrigan

DATE:19 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 19 September 2016 at 4:00pm

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] December 2013 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   RELEVANT LAW

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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant’s claims can be summarised as follows.  He was born in [year] in, [Vietnam].  He lived there until he came to Australia in May 2008 on a [temporary] visa valid for three months.  His wife and [child] still reside in Vietnam.

20. The applicant’s [specified family members] ran a small [business] in Vietnam.  The applicant provided finances for the business having saved money from working in [another country] in [year range] but he was not involved in running the business.  A local criminal gang demanded protection money from his family.  The applicant and his siblings refused to pay protection money and were beaten by the gang.  The applicant reported these matters to the local police in 2008.

21. Since making this report, the [business] has been burnt down and their home was stoned on many occasions.  The gang members would come to the [business] and not pay for things and smash items.  The applicant was beaten by the gang many times because he had reported them to the police.  On two occasions, three gang members came to his house and beat him in front of family members.  The applicant’s [Relative A] was kidnapped in 2008 and a ransom was demanded for his release.  Despite paying the ransom, the gang advised it was not enough and the applicant has not heard from his [Relative A] since this incident. The gang continues to terrorise the applicant’s family and the police are unable to protect them as they are corrupt and support the gangs.  

    Country of reference

22. The applicant claims to be a citizen of Vietnam.  He has submitted a copy of his passport that supports this.  Accordingly, I find that Vietnam is his country of nationality for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

23. I have considered carefully the applicant’s claims but I do not consider him to be a credible witness.  I am of this view for the following reasons:

    ·The applicant’s evidence was marked by a high level of fundamental and significant inconsistency.  At the interview with the delegate and at the hearing, he stated that had never been physically harmed by the gangsters and that he had not come face to face with them.  He claimed that they had smashed [furniture] and other things at the [business] but they had not done anything else to the business.  However, in his protection visa application he stated that many times his siblings and himself had been beaten by the gangsters.  He claimed that twice they came to his house and started beating him in front of his family and that the [business] had been burnt down by the gangsters.  At the hearing, the applicant commented that he had told the Department that he did not know what was written down in his application.  He commented that he did not speak English and that a man who he met and had coffee with had written the application.  He said the man’s name was [name] but he did not know his full name and that they met on 4-5 occasions.  I have taken into account that the applicant does not speak English, but the applicant told the Tribunal that he had signed the application and at the start of the hearing he said that everything in the application was true and I do not accept that his lack of English satisfactorily explains such highly significant inconsistencies and I consider these substantially detract from his credibility.

    ·In his protection visa application, the applicant stated that he arrived in Australia on [temporary] visa [in] April 2008 which expired [in] July 2008.  At the hearing he confirmed this was the case and he said he was sponsored by his sister and that he was unlawful until he applied for the protection visa [in] December 2013.  At the hearing, the applicant commented that he did not know about protection visas or policies and that he had no choice but to stay unlawfully.  I have considered his comments, but he had earlier told the Tribunal that his sister who had sponsored him on the [temporary] visa had been in Australia for over a decade and I do not consider it credible or plausible that he would have been unaware of the ability to apply for protection in Australia for such a very long period of time if the events he was claiming were true.   I find the very long period of delay and unlawfulness detract substantially from his credibility.

24. I accept that the applicant’s family ran a [business] in Vietnam which closed in 2010 or 2011 and that he financed the business as he told the Tribunal.  However, due to the above highly significant concerns about his credibility, I do not accept that a local criminal gang demanded protection money from his family.  I do not accept that the applicant and his siblings refused to pay protection money and were beaten by the gang.  I do not accept that the applicant reported these matters to the local police in 2008.

25. I do not accept that since making this report, the [business] has been burnt down and their home was stoned on many occasions.  I do not accept that the gang members would come to the [business] and not pay for things and smash items.  I do not accept that the applicant was beaten by the gang many times because he had reported them to the police.  I do not accept that on two occasions, three gang members came to his house and beat him in front of family members. I do not accept that the applicant’s [Relative A] was kidnapped in 2008 and a ransom was demanded for his release.  I do not accept that despite paying the ransom, the gang advised it was not enough and the applicant has not heard from his [Relative A] since this incident.  I do not accept that the gang continues to terrorise the applicant’s family and the police are unable to protect them as they are corrupt and support the gangs.  I do not accept that the applicant or any member of his family were or are of adverse interest to gangsters or anyone else.

26. In making my findings, I have taken into account three submitted translated letters from the applicant’s wife that refer to threats of gangsters and them smashing [furniture], kidnapping the applicant’s [Relative A] and looking for the applicant and reports made to the police who have not helped.  However, given the highly significant concerns, I have with the applicant’s credibility as set out above I have given these no weight in making my assessment.

27. In making my findings, I have taken into account a submitted translated copy of a death certificate of the applicant’s mother which indicates that she died of a disease on [a date in] November 2015.  I accept that the applicant’s mother did die of a disease on that date.  The applicant told the Tribunal that his ill mother did not want him to return and he did not.  However, I do not consider his failure to return to Vietnam in the light of his mother’s illness outweigh the highly significant concerns I have about the applicant’s credibility that are set out above.

28. Considering the applicant’s individual circumstances, I find there is not a real chance that in the reasonably foreseeable future he would be persecuted by gangsters or anybody else for any reason (including race, religion, nationality, political opinion or membership of a particular social group including his family).  His fear of persecution is not well-founded.

29. Considering the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.

    Conclusions

30. 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).

31. 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).

32. 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

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

    David Corrigan
    Member