1600042 (Refugee)

1600042 (Refugee) [2018] AATA 4978 (19 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600042
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Denis Dragovic
DATE:19 October 2018
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 19 October 2018 at 1:09pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – race – Ba Na ethnic group – imputed political opinion – Montagnard – particular social group – orphan child – reasonably foreseeable future – political stability and economic progress – residential institutions for children – applicant does not speak Vietnamese – fear of homelessness – Convention on the Rights of the Child – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
CPE15 v MIBP [2017] FCA 591
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam applied for the visa on 11 March 2015. The Tribunal sighted the applicant’s passport dated [in] 2013. I accept that the applicant is a citizen of Vietnam.
The applicant is [an age] year old boy who came to Australia by way of a [temporary] visa at the age of [age]. He was sponsored by [Ms A] and [Mr B]. He remained in Australia on a further [temporary] visa. On 11 March 2015 the applicant applied for a protection visa. [In] May 2018 the Family Court of Australia gave joint parental responsibility for the applicant to [Ms A] (whom I will refer to as the ‘mother’) and [Mr B] (the ‘father’).
The delegate considered the circumstances of the applicant and whether he faces a real chance of persecution for reasons of limited access to medical services, being a member of the Rongao Tribe and considering the treatment of children in orphanages. The delegate found that the applicant’s claims of facing persecution were not well-founded. Specifically, the delegate found that although societal discrimination against ethnic minorities persists in Vietnam including some unofficial restrictions on employment and access to education, this discrimination does not generally reach the level of persecution.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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) of the Act 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 themself of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act.
Under s.5J(1) of the Act, 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) of the Act, 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.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
The issue in this case is whether the applicant faces a well-founded fear of persecution as prescribed in the Act into the ‘reasonably foreseeable future’, a concept developed in case law.
The concept of well-founded fear has been outlined above. For this case it is important to consider what the reasonably foreseeable future entails. The Federal Court has commented that the use of the term reasonably foreseeable future indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork, and is intended to preclude predictions of the future that are so far removed in time from the life of the person concerned at the time they are returned to their home country as to bear insufficient connection to the reality of what that person may experience.[1]
[1] CPE15 v MIBP [2017] FCA 591 (Mortimer J, 26 May 2017) at [60]
The reason that there is no firmer guidance on what constitutes the reasonably foreseeable future is that it varies depending upon the particular circumstances of each applicant. The reasonably foreseeable future of an applicant from Afghanistan would be far shorter than for someone from the United Kingdom. The reason being that Afghanistan is highly unstable and has been so for the past three decades. In such an environment circumstances change rapidly. The United Kingdom, on the other hand, has had stability in its social and legal spheres such that what were the circumstances in recent years can reasonably be presumed to continue to be in forthcoming years.
As such I turn my mind to consider what the reasonably foreseeable future is for Vietnam.
Encyclopaedia Britannica describes Vietnam’s governance history as:
The first constitution of the Socialist Republic of Vietnam, adopted in 1980, established a Council of State as a collective presidency and a Council of Ministers. In 1992 this document was superseded by a second constitution, which, in addition to replacing the Council of State with an elected president and otherwise reforming Vietnam’s government and political structure, also outlined major shifts in foreign policy and economic doctrine. In particular, it stressed the development of all economic sectors, permitted private enterprise, and granted foreign investors the right to legal ownership of their capital and assets while guaranteeing that their property would not be nationalized by the state.
The 2017 Department of Foreign Affairs and Trade Report states:
2.18 Vietnam is one of the world’s few remaining one-party communist states. Under Article 4 of the Constitution, the Communist Party of Vietnam (CPV) remains the country’s only legal political party.
The World Bank provides an overview of the economic trajectory in Vietnam:
Vietnam’s development record over the past 30 years is remarkable. Economic and political reforms under Đổi Mới, launched in 1986, have spurred rapid economic growth and development and transformed Vietnam from one of the world’s poorest nations to a lower middle-income country.
Vietnam’s economy is performing well, propelled by the sustained global recovery and continued domestic reforms. Robust growth is boosting job creation and income growth, leading to broad-based welfare gains and poverty reduction.
…
Over the last thirty years, the provision of basic services has significantly improved. Vietnam is today a significantly more educated and healthy society than twenty years ago, and these qualities are equitably distributed.[2]
[2] World Bank, The World Bank in Vietnam, accessed 19 October 2018.
In summary from a political perspective the governance structure in Vietnam has been stable for nearly 40 years and from an economic perspective it has been consistently growing making Vietnam a lower middle-income country.
Considering that Vietnam is on a positive trajectory with increased income, access to basic services and political stability it is unlikely and no evidence was found from experts to suggest that there could be sudden shifts in public policy. No evidence was found to suggest that there are democracy movements such as the Arab Spring, which could see sudden changes in government structure. For this reason I accept that the policies that are in place now will be in place into the reasonably foreseeable future and that this extends as far out as to when the applicant may be looking at receiving an education and even finding work, a period of up to 10 years.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence and findings of fact
Regarding the applicant’s ethnicity, the applicant has claimed to be a member of the Rongao ethnic group. The very first documentary evidence of the applicant’s ethnicity was found by the Tribunal in the application for a [temporary] visa received by the Department on 13 March 2014 in which it is written that the ‘child is a member of an ethnic minority group’. A copy of the household registration card notes ‘Rongao’.
Rongao (or Ro-Ngao) is a language spoken by part of the Ba Na (or Bahnar) ethnic group (18,000 people, according to a 2007 source), which had 227,706 members in the 2009 Census. Country information states that Rongao are located in ‘Kon Tum Province, northwest of Dak to southeast of Kontum city between Sedang and Bahnar’.[3] It appears that the term is used to both describe the language as well as the people who speak the language akin to how the term ‘English’ evolved.
[3] ‘Rengao’ n.d., Ethnologue, accessed 11 June 2015
On his passport and other documents the applicant’s place of birth is Kon Tum, a province in the central highlands bordering Laos and Cambodia. Kon Tum and the central highlands are a region that is home to the Montagnards. This term derived from the meaning of ‘mountain’ in French refers to the hill tribes of the central highlands who fought alongside US Special Forces as rapid response forces against the North Vietnamese in the Vietnam War. It is this relationship, which added to past differences that has in large part led to discriminatory treatment by the government.[4]
[4] Rebecca Onion, ‘The Snake-Eaters and the Yards’, Slate, 27 November 2013, < accessed 18 October 2018.
That at the first engagement with the Australian government in relation to a non-protection visa matter there is mention of his minority status and that Rongao appears in his household registration card strongly indicates that the applicant is of Ba Na ethnicity. That he is from Kon Tum where country information indicates Rongao speakers are located further adds weight to his claim that he is a Rongao and Ba Na. As such I accept that the applicant is a Rongao speaker of the Ba Na ethnicity, that he is a minority ethnicity and that his ethnicity is a part of the loose term Montagnard.
The applicant left Vietnam at the age of [age]. He was reportedly born premature at [number] weeks weighing [weight]. His mother died in the postpartum period when the applicant was [number] weeks old. He was subsequently discharged from hospital into the care of his biological father who took him to a Catholic orphanage as he didn’t have money for baby formula. According to the application for protection, at the time the applicant was brought to the orphanage, an American Vietnam War veteran was visiting and provided funds for baby formula. When he was [number] months old, having survived his premature birth he was found by his Australian mother. He is now nearly [age] and in school. The applicant’s Australian mother and father claimed that he does not speak Vietnamese. I accept as fact the narrative of the applicant’s birth and subsequent years including that he does not speak Vietnamese.
Country information provided to the Tribunal shows that in 2008 malnutrition among children in the central highlands was very widespread which has impacted the children’s learning ability (24.3% at nursery age; 21.6% preschool) (folio 115 [file number]).
Human Rights Watch provides a more recent statement on the broader circumstances of the Montagnards:
Ethnic Montagnards face surveillance, intimidation, arbitrary arrest, and mistreatment by security forces. Authorities compelled members of independent Christian Montagnard religious groups to publicly denounce their faith.
Government repression caused hundreds of Montagnards to flee to Cambodia and Thailand. Vietnam responded to the flight of Montagnards into Cambodia by pressuring Cambodian authorities to prevent border crossings and deny the asylum claims of those who arrive in Cambodia. According to the United Nations Refugee Agency, UNHCR, Vietnam pressured the UN and refugee resettlement countries to not accept Montangnards.
In April, the People’s Court of Gia Lai province sentenced at least five Montagnards to 8 to 10 years in prison for the so-called crime of participating in independent religious groups not approved by the government.[5]
[5] Human Rights Watch, World Report 2018 – Vietnam, 18 January 2018, available at < accessed 18 October 2018.
The UK Home Office provides similar information:
Montagnards - face greater levels of official harassment and discrimination because of their history, religious practice and actual or perceived political activism, and may face treatment that amounts to persecution or serious harm.[6]
[6] UK Home Office, Country policy and information note: ethnic and religious groups, Vietnam, March 2018, < accessed 18 October 2018.
The biological father of the applicant has provided written statements verified by Vietnamese authorities explaining that he does not have the means to care for and raise the applicant. I accept that this is the case.
Was the applicant to return to Vietnam he would face an uncertain future. Would he be returned by the Vietnamese authorities to the orphanage where he was left after his biological mother died or would another place be found? It is a pertinent question as the level of support that he would receive would vary greatly. Was he to be returned to Kon Tum he would be in an environment that had previously cared for him and one which country information suggests provides a ‘safe environment.’[7] He would be geographically close to his family and in an environment that is culturally supportive of his minority ethnicity but considering that the Vietnamese government is systematically discriminating against the Montagnards (see Human Rights Watch report, ‘Persecuting “Evil Way” Religion: Abuses against Montagnards in Vietnam, 26 June 2015 along with the above country information) I find that there is a possibility which must be considered that the applicant would be intentionally diverted away from returning to the central highlands for political reasons by authorities upon his return.
[7] [Deleted.]
In such circumstances alternative placements for the applicant include family-based care and residential care (orphanages).[8] Family-based care helps extended families take in orphaned children. This could not be applied to the applicant as his family is in the central highlands where I found he would not be returned to for political reasons. Alternatively there is ‘residential care’. UNICEF describes state-run orphanages in Vietnam:
Staff capacity is seriously limited; only a minority of institutions adhere to CRC [Convention on the Rights of the Child] principles; and children tend to be institutionalised for long periods, in some cases from infancy until they reach legal maturity. Recent studies have reported maltreatment of certain groups, such as children with mental disabilities and those previously exploited as commercial sex workers.
[8] UNICEF, An Analysis of the Situation of Children in Viet Nam 2010, < accessed 18 October 2018.
There is no reason to indicate nor do I accept that the applicant would find his way to a Catholic-run orphanage or one supported by foreign groups.
Another alternative possibility is that the applicant remains only temporarily in a state-run orphanage and then lives on the streets. The 2018 Trafficking in Persons report speaking in general terms states:
Removal of a child from the family should only be considered as a temporary, last resort. Studies have found that both private and government run residential institutions for children, or places such as orphanages and psychiatric wards that do not offer a family-based setting, cannot replicate the emotional companionship and attention found in family environments that are prerequisites to healthy cognitive development.
Specifically for Vietnam it states:
Children from impoverished families are vulnerable to forced labor, often with the complicity of their families, including in domestic servitude and forced begging or street vending in Thailand and Vietnam.
…
Within the country, Vietnamese men, women, and children—including street children and children with disabilities—are subjected to forced labor, although little information is available on these cases.[9]
[9] United States, Department of State, Trafficking in Persons Report 2018, pp 22 and 127.
I find that the applicant faces a bleak future of life either in a state-run orphanage or on the streets. He cannot speak Vietnamese, a situation that will make him particularly vulnerable to abuse and neglect. Without family support the applicant will not have healthy cognitive development. Separated from his ethnic homeland he will be isolated and susceptible to discrimination.

UNICEF states that in Vietnam, ‘Street children are at higher risks of drug use, HIV infection, sexual exploitation and trafficking and committing crimes. The number of children affected by HIV and AIDS is growing rapidly.’[10]
[10] UNICEF, An Analysis of the Situation of Children in Viet Nam 2010, < accessed 18 October 2018.
Considering that the applicant faces life for the reasonably foreseeable future in state-run orphanages that are seriously short staffed and don’t adhere to the Convention on the Rights of the Child or alternatively a life on the streets where HIV infection, drug use and trafficking are a risk, without any support networks as a minority and hampered by his lack of language skills I find that the applicant faces a real chance of serious harm.
I have considered whether race, religion, nationality, political opinion or membership of a particular social group is the essential and significant reason. Considering that I have found that the applicant would be diverted from returning to the central highlands where he could live in a ‘safe environment’ for reasons of his ethnicity which in this context engages with imputed political opinion, race and membership of a particular social group I therefore find that the real chance of serious harm is the essential and significant reason and I find it to be systematic in the sense deliberate by the state to exclude him from his community.
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) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Denis Dragovic
Senior 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.
…
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.
…
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.
…
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.
…

[2018] AATA 4978

19 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness