1512295 (Refugee)

[2015] AATA 3898

1512295 (Refugee) [2015] AATA 3898 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512295

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:David Corrigan

DATE:10 December 2015

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 10 December 2015 at 4:46pm

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 [in] September 2015 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] May 2015 and the delegate refused to grant the visa [in] September 2015.

3. The applicant appeared before the Tribunal on 1 October 2015 to give evidence and present arguments. The applicant’s mother and sister gave evidence as witnesses. The applicant was represented in relation to the review by his registered migration agent.

   CRITERIA FOR A PROTECTION VISA

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, 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.

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 because the person is a refugee.

6. 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 themself 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).

7. 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.  

8. 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.

9. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

   Mandatory considerations

10. 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 relevant 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

11. I have before me material including:

    ·Application for protection visa;

    ·Agent’s submission dated 9 June 2015;

    ·Statement of the applicant dated 4 June 2015;

    ·Statements of the applicant to the police dated [in] November 2004, [November] 2004 and [January] 2004;

    ·Agent’s submission dated 28 September 2015;

    ·Agent’s submission dated 27 November 2015;

    ·Psychologist’s report, dated [in] November 2015;

    ·[A specified Court] Judgment [ …];

    ·National Police Certificate, dated [in] 2013.

12. The applicant’s claims can be summarised as follows.  He was born in [City], Vietnam in [year].  His dad passed away and he came to Australia as [age] year old as a dependent on his mother’s [permanent] visa.  His mother, [and siblings] are now Australian citizens.

13. The applicant only has limited schooling and he finished only Year [number] in Vietnam and dropped out of high school in Australia.  His family were very poor in Vietnam and he does not have a trade or vocational qualifications.  If he returns to Vietnam, he will have no home, not be able to get a job and he would have no family or social support.  He has only limited Vietnamese language skills.  People would look down on him, exclude him and prevent him from getting work if they found out he had a criminal history.  He will be denied public support or housing from the government.  He will be permanently separated from his [child] who is an Australian citizen and he could not gain a job that would allow him enough money to be able to visit [his child].

14. In 2004, the applicant was the victim of an attack in [Melbourne] when he was wounded by three [number] armed men.  He witnessed [number] men being shot and another three being stabbed.  One of the men shot died.  The applicant recovered physically but suffered post-traumatic symptoms. He suffered a serious drug addiction.  In [2011] he was sentenced in [a] Court for serious offending arising from a drug related incident in March 2011.  He was sentenced on two [specific] counts [… ] and was ordered to serve [18] months imprisonment.  This sentence later became the basis of [the] cancellation [of his permanent visa] under s.501 of the Act.  The sentencing judge drew a link between his exposure to the murder in 2004 and his resulting post-traumatic stress disorder and drug use.

15. The applicant abused [a specific drug] from [for several years] and was charged with numerous minor offences related to the possession and use of drugs.  His partner was also addicted to [another drug].   In 2013 he was again charged with possession of [other drugs] which constituted a breach of his parole conditions and was sent back to jail.

    Country of reference

16. The applicant claims to be a citizen of Vietnam.  He has consistently claimed this and there is no evidence to the contrary.  Accordingly, I find (as did the delegate) that Vietnam is his country of nationality and that this country is his receiving country.

    Assessment of claims

17. The applicant presented as a credible witness at the hearing and he has made consistent claims.  The delegate came to the conclusion that the risk that the applicant would relapse into drug taking as being highly speculative.  However, a substantial amount of evidence has been presented before me that leads me to find that the risk of this is not speculative but very high.  The applicant told the Tribunal that he did not know whether he would relapse into drug taking and that he has not taken drugs since being in prison and detention. However in making my findings I have taken into account that:

    ·The applicant’s National Police Certificate shows that the applicant has a long and substantial criminal record of drug offences relating to the possession and use of [several drugs] (and even one offence of trafficking [one drug]) during the period 2007 to 2013.

    ·The applicant was convicted in [2011] of one count of intentionally causing injury and one count of affray.  In his sentencing, [the Judge] after considering the evidence concerning the applicant (including a psychologist’s report) concluded that considering the applicant’s lengthy polysubstance and drug abuse and his reasonably lengthy prior offending, that the prospects of rehabilitation was somewhat cloudy;

    ·The psychologist’s report submitted to the Tribunal refers to the applicant having well below average intelligence and limited literacy and it opines that he appears to be suffering from a Major Depressive Disorder and Post-Traumatic Stress Disorder (in remission) in relation to the trauma he experienced in 2004.  The psychologist opines that the applicant would be at significant risk of worsening depression if he had to return to Vietnam and would have no family support there and would be faced with permanent separation from his family and friends in Australia.  It is stated that he would be extremely likely that his depression would worsen and become chronic.  The psychologist refers to academic evidence that there is a clear relationship between psychological distress and substance abuse.  The report refers to a number of risk factors that would predict a high risk of relapse including that the applicant’s drug use commenced at an early age and that the drugs the applicant used are highly associated with relapse risk.  The psychologist states that it is much more likely that he has been drug free because he has been incarcerated and that there is an extremely high risk or likelihood, he would relapse.  I consider this report to be authoritative and have given it substantial weight.

    ·The applicant and his mother and [a sibling] each gave credible evidence to the Tribunal concerning he applicant’s lack of family support in Vietnam and the likely emotional effect on him that would result from his separation from his family and in particular his young [child].  This supports the Tribunal’s findings that the applicant is at a very high risk of serious psychological problems and of relapse into addiction of hard drugs.

18. Authoritative and recent country information before the Tribunal indicates very poor treatment of drug addicts by the Vietnamese government.  The Australian Department of Foreign Affairs and Trade (DFAT) recently stated:

    4.12 Around 32,000 drug users are detained in administrative centres, without charge and with limited judicial involvement. Drug users reportedly spend an average of one to two years in these centres. There is a high rate of recidivism. Credible reports indicate that at the completion of their initial term, a second term of around two years is often arbitrarily imposed. There have been reports of harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The centres are often reported to be profitable for those managing them due to the forced labour practices. [1]

    [1] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.

19. The International Labour Rights Forum has reported on interviews it conducted with former detainees between June 2012 and June 2013 which details forced labour and incidents of beatings and other punishments and the weak oversight of these detention centres.[2]  Human Rights Watch produced a detailed report in 2011 concerning the centres:

    People detained by the police in Vietnam for using drugs are held without due process for years, forced to work for little or no pay, and suffer torture and physical violence, Human Rights Watch said in a report released today. Government-run drug detention centers, mandated to “treat” and ”rehabilitate” drug users, are little more than forced labor camps where drug users work six days a week processing cashews, sewing garments, or manufacturing other items.

    The 121-page report, “The Rehab Archipelago: Forced Labor and Other Abuses in Drug Detention Centers in Southern Vietnam,” documents the experiences of people confined to 14 detention centers under the authority of the Ho Chi Minh City government. Refusing to work, or violating center rules, results in punishment that in some cases is torture. Quynh Luu, a former detainee who was caught trying to escape from one center, described his punishment: “First they beat my legs so that I couldn't run off again... [Then] they shocked me with an electric baton [and] kept me in the punishment room for a month.”

    “Tens of thousands of men, women and children are being held against their will in government-run forced labor centers in Vietnam,” said Joe Amon, health and human rights director at Human Rights Watch. “This is not drug treatment, the centers should be closed, and these people should be released.”

    Vietnam’s system of forced labor centers for drug users has its origin in “re-education through labor” camps for drug users and sex workers established following the victory of North Vietnam in 1975. The centers received renewed political support in the mid-1990s during a government campaign to eradicate so-called “social evils,” including drug use. As Vietnam’s economy has modernized, the system has expanded. In 2000, there were 56 such centers across Vietnam; by early 2011, there were 123.

    People are commonly held in the centers after police detain them or family members “volunteer” them for detention. In a few cases, individuals volunteer themselves, believing the centers provide effective drug dependency treatment.

    Former detainees told Human Rights Watch that they were sent to the centers without a formal legal hearing or trial, and without seeing a lawyer or judge. They said that they were unaware of any means to review or appeal the decision to detain them. Those detainees who entered on a voluntary basis said that they were not free to leave and that their detention was arbitrarily extended by center management or changes in government policy.[3]

    [2] International Labor Rights Forum, Vietnam’s Forced Labor Centres – New evidence shows forced labor and other abuses continue in Vietnam’s drug detention centres, January 2014.

    [3] Human Rights Watch, Vietnam: Torture, Forced Labour in Drug Detention, 7 September 2011.

20. The United States Department of State reported in 2014 that there is a new law that requires a judicial proceeding before any individual is sent to a compulsory detoxification establishment.  It reports that detainees in the compulsory detoxification establishments may work no more than three hours per day.  It reports that the government announced publicly the goal of reducing the number of compulsory detoxification establishments from 121 to 40 by 2020.[4]  Whilst there appears to be some recent improvement in the laws and processes regarding the detention of drug addicts and an intention of the government to reduce the number of centres, I note that the more current report of DFAT indicates that there are still harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse and that detention is still occurring without charge and with limited judicial oversight.

    [4] United States Department of State, Country Reports on Human Rights Practices for 2014, Vietnam.

21. Vietnam currently has between 140,000 to 183,000 drug addicts[5] and DFAT have stated that there around 32,000 drug users detained in the detention centres.  Given my findings about the very high risk that the applicant will relapse into taking hard drugs and the country information, I consider the chance that he will be detained in one of these centres is more than remote.

    [5] BBC, Hundreds of Vietnam drug addicts escape rehabilitation, 15 September 2014.

22. Considering the above country reports concerning drug users and the definition of particular social group set out in s.5L of the Act, I find that the applicant is a member of a particular social group consisting of “drug users in Vietnam” as he shares a common characteristic with other group members that distinguishes the group from society.

23. Given the above country information concerning the treatment of drug users in detention centres and the applicant’s individual circumstances, I find that there is a real chance that the applicant would be persecuted by the Vietnamese government for reasons of his membership of a particular social group.  As his fear of harm is from the government, the real chance relates to all areas of Vietnam.  I find that the treatment he faces would constitute serious harm (including a threat to life or liberty and significant physical harassment and ill-treatment) and would involve systematic and discriminatory conduct.  As the persecution the applicant faces is at the hands of the government, he would not have available to him effective protection measures.  He has a well-founded fear of persecution and is a refugee.

24. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusions

25. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

26. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    David Corrigan

    
    

    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …