1605592 (Refugee)

[2017] AATA 914

1605592 (Refugee) [2017] AATA 914 (8 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605592

COUNTRY OF REFERENCE:                   Vietnam

MEMBERS:Jan Redfern (Presiding)

Tony Caravella

DATE:8 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2017 at 9:39am

CATCHWORDS

REFUGEE — Vietnam – Claim to fear persecution on the basis of Catholicism – Member of a particular social group – Imputed political opinion – Failed asylum seeker and unlawful departure – Credibility – Whether applicant would be forcibly separated from his family – Psychological harm - Whether removal and separation engages complementary protection provisions – Necessary and foreseeable consequence

PRACTICE AND PROCEDURE — Role of Tribunal – Failure by applicant to make expert witness available for questioning - Weight to be given to expert opinion – Operation of s.424A - Whether information would be a reason for affirming the decision under review

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Administrative Appeals Tribunal Regulations 2015, r 14(3)
Migration Act 1958, ss 5(1), 5AAA, 36, 48A, 65, 91R(1)(b), 351, 417, 424, 426, 427, 499, 501J
Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZIAI [2009] HCA 39
SZLPJ v MIAC (2007) 164 FCR 578
MZAEN & Ors v Minister for Immigration and Anor [2016] FCCA 620
MIAC v SZQOT [2012] FCAFC 141
SZRSN V MIAC [2013] FCA 751
MIAC v MZYHS [2011] FCA 53
BZG15 v Minister for Immigration [2016] FCCA 2538
SZTAL v Minister for Immigration [2016] FCAFC 69

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 (and there is no controversy about this), applied for the visa [in] February 2013. The delegate refused to grant the visa [in] February 2014.

3. The applicant applied to the Refugee Review Tribunal (RRT) for a review of the delegate’s decision.  On 24 March 2015, the RRT affirmed the decision not to grant the applicant a protection visa.

4. The applicant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the delegate’s decision.  [In] April 2016, Judge Lucev of the FCCA ordered by consent that the RRT’s decision be quashed.  His Honour found that the RRT failed to consider a claim made by the applicant to fear harm as a member of a particular social group comprising of members of a religious minority group, namely persons of the Catholic faith.  The court remitted the matter to this Tribunal for reconsideration.

5. In summary, the applicant claims Australia has protection obligations to him as a refugee under the Refugee Convention or, alternatively, under the complementary protection grounds set out in the Act. He claims he has a well-founded fear of persecution because of his religion as a Catholic, his imputed political opinion as being opposed to the Vietnamese government and his membership of a particular social group, namely being part of a religious minority in Vietnam and a failed asylum seeker from a western country.  The latter claim about being a failed asylum seeker was contained in written submissions made to the delegate in 2013 and the claim about his membership of a religious minority was contained in written submission made to this Tribunal in November 2016.  It should also be noted that this claim was the subject of the consent remittal. We have considered both claims.  The applicant also claims that if he is removed from Australia and returned to Vietnam he will suffer significant harm, being serious psychological harm, if he is separated from his wife and [child]. As such, it is asserted by the applicant that even if he is not entitled to a protection visa as a refugee, he satisfies the criteria for complementary protection.

6. The applicant came to Australia by boat in 2012. He entered Australia through Christmas Island and was interviewed by Department officials soon after his arrival.  The applicant met and married his wife after he arrived in Australia. She has also made a claim for a protection visa, which has not yet been determined by the Minister or his delegate.  The applicant’s [child] is included as a dependent in that application.

7. We have decided to affirm the decision under review.  Our reasons follow.

   SUMMARY OF APPLICANT’S CLAIMS FOR PROTECTION

8. The applicant claims a fear of persecution if he returns to Vietnam because of his religion, as a practicing Roman Catholic, his imputed political opinion for being perceived as an anti-communist for openingly practicing Catholicism in Vietnam and Australia, and his membership of a religious minority in Vietnam. These claims were set out in written submissions made by his representative prior to the hearing (the first submissions).[1]

   [1] Letter to the Tribunal from [the representative] dated 1 November 2016 (first submissions)

9. In a written submission to the Department dated [in] February 2013, it was also submitted that the applicant fears persecution through his membership of a social group, being a failed asylum seeker from a Western country, because he may be punished “above and beyond the laws of general application on account of his perceived anti-communist attitude for departing Vietnam and seeking protection where he is free to practice his religious beliefs’.[2] This claim was explained by the applicant’s current representative in her submissions of 1 November 2016 on the basis that the applicant was “unlikely” to be received back into Vietnam without charge due to his illegal departure from Vietnam. It is claimed that the applicant will be subjected to unfair legal processes with a greater risk of “forced confessions” and that there was “every possibility the Vietnamese authorities would use the loosely defined national security provisions in their Criminal Code to detain him indefinitely in order to punish him for leaving the country and seeking asylum in Australia so he could safely continue to practice his Catholic faith without fear of being charged”. There is also a reference to “unlawful departure” in a submission received from the applicant’s representative after the hearing (the second submissions).[3] 

   [2] Letter to the Department from [the representative’s company] dated [in] February 2013.

   [3] Letter to the Tribunal from [the representative] undated but received on 22 November 2016 (the second submissions)

10. It is claimed that these fears of persecution are well-founded and are supported by evidence of past persecution by authorities in Vietnam directed at the applicant and his family. This fear is also claimed to be based on recent country information about Vietnam. The applicant claims that if he returns to Vietnam he will be arrested and detained by the authorities. According to the applicant, anything could happen and it is possible authorities will beat and torture him.

11. Particulars of the basis for these claims were provided by the applicant in statements and written submissions made to the Department and the Tribunal.[4] The applicant also gave evidence about some of these claims during the hearing. A summary of these claims follow. 

    [4] Statement of the applicant dated [in] February 2013 and letter to the Department from [the representative’s company] dated [in] February 2013

12. The applicant was born in [Ha Tinh], Vietnam. He claims his family moved to another area because of the problems they were having with the Government and before he left Vietnam, his parents took his siblings to stay with a person in another province. His parents did this because they were worried about their safety. He also claims the family home has almost been fully destroyed by the Government now.

13. The applicant claims that his parents converted to Catholicism around 2009 and that since that time they started experiencing problems with the Government. He claims his parents contributed financially to the Catholic Church and participated in Church activities but the Government made it difficult for his family to continue to reside in the area. He also claims he converted to Catholicism and is a practicing Catholic. The applicant claims that he and his family were persecuted.

14. The persecution claimed by the applicant is as follows:

    (1)The Government forced the applicant and his family to stop their family business, which involved operating [a business].  He claims the Government had posts and they would not let [their vehicles] pass through.

    (2)The applicant’s parents were forced to attend “re-education camps” where they were forced to work. Between mid-2010 to May 2011, his parents were taken four or five times to these camps. He claims that they were also harassed for financial contributions to local government activities and were severely beaten and hospitalised if they did not cooperate. The applicant claims he was also harassed.

    (3)His parents fled to [Country 1] in May 2011 after leaving him with some money and since then he has lost contact with his family.  His siblings were young so his parents sent them to another province before this.  He decided to stay behind because he believed he had done nothing wrong and he would be fine. However, the applicant claims the authorities continued to come to his house saying they needed to “borrow” things but this was an excuse to take away their possessions which were not returned. 

    (4)Sometimes the applicant would be beaten by authorities and on three occasions he was hospitalised as a result.  He claims the authorities continued to harass him constantly after his parents left. 

    (5)On Christmas Eve 2011, he was attending a local church service and local government representatives came to the service and harassed and beat the people there, including the Parish priest. He claims he was hit on the back of the head that night and was hospitalised for the night. On 26 December 2011, he received a summons from the local government to report to the police and when he presented himself he was beaten and hit. 

    (6)After this incident the applicant claims he was summoned to the local police many times and was harassed and forced to work for authorities for free.  He was not permitted to leave the area without their permission and continued to be harassed and summonsed until he departed Vietnam. He claims the police continued to come to his home and destroyed his property. They caused a lot of damage and would ask the whereabouts of his parents.

    (7)On one occasion the applicant was refused the renewal of his driver’s licence. He was asked for money and was not allowed to renew his licences.

15. The applicant claims that because of this persecution he sold his [vehicles] and used the money he received for the [vehicles] to pay for his travel to Australia.

16. The applicant claims that someone who attended the same Christmas service in 2011 was beaten to death and that 30-40 people were arrested following the church service on Christmas Eve 2011. 

17. According to the applicant, the authorities are the agents of his claimed persecution and if he returns to Vietnam they will target him because he is Catholic. The authorities are opposed to Catholic people and anyone who participates in Catholic Church services and Catholic Church activities.  He claims he will not be protected by authorities and he is therefore unable to relocate to any other area in Vietnam. It will be the same everywhere.

18. The applicant claims that if the Tribunal does not find he is a refugee under the Refugee Convention, Australia nonetheless has protection obligations to him on the grounds that his removal from Australia to Vietnam will cause him significant harm. He claims he has [several specified conditions] and this will be exacerbated if he is removed from his family in Australia. These claims were set out in some detail in the submissions from the applicant’s representative dated 1 November 2016 and the undated submissions received after the Tribunal’s hearing (the second submissions).[5]

    [5] The first submissions at pp 5-7 and second submissions pp 3-5

19. The applicant claims that he will suffer significant harm, being serious psychological harm, as a necessary and foreseeable consequence of being removed to Vietnam if he is separated from his wife and child and that he will suffer cruel, inhuman and degrading treatment if he is deprived of the right to be a father and the right to continue to have a meaningful relationship with his [child].  It is also claimed that his [child] will be denied the right to have a meaningful relationship with [the applicant], which is contrary to the United Nations Convention on the Rights of the Child. It is asserted that the applicant’s wife was found in 2012 to be a person in respect of whom Australia had protection obligations. She married the applicant in 2013 and they became parents in [year]. The applicant’s wife is the sole provider for the family and she relies on the applicant to look after their [child]. A forced separation will “dismantle the family unit and remove stability and support” from the applicant’s dependent child.

20. The applicant further claims that forcibly returning him to Vietnam “may render him incapable of reintegrating back into Vietnamese society and obtaining gainful employment, causing him to suffer considerable economic hardship that will significantly affect his capacity to subsist”.[6]

    [6] The first submissions at p 6

    RELEVANT LAW AND QUESTIONS FOR DETERMINATION

21. 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). Relevantly, the Tribunal must be satisfied that the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (sub-para (a)), or on other ‘complementary protection’ grounds (sub-para (aa)), or is a member of the same family unit as such a person and that person holds a protection visa of the same class (sub-paras (c) and (d)).

22. The applicant’s spouse does not hold a protection visa and neither the applicant nor his representative claim he meets the criteria set out in s 36(2)(c) or (d).

23. The issues for determination are whether Australia has protection obligations to the applicant on the basis that he is a refugee, namely that he has a well-founded fear of persecution on the one or more of the relevant grounds, or, if the applicant is not a refugee, does Australia have protection obligations under complementary protection grounds. 

    Refugee criterion

24. 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).

25. 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.

26. 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.

27. There are four key elements to the Convention definition.

28. First, an applicant must be outside his or her country.

29. Secondly, 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. They include a threat to the person’s life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to services such that the person’s capacity to subsist is threatened, denial of capacity to earn a livelihood of any kind threatening the person’s capacity to subsist. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group (Chan v MIEA (1989) 169 CLR 379). 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. 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.

30. Thirdly, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition, namely 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.

31. Fourthly, 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.[7]

    [7] Chan v MIEA

32. 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.

33. 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

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) (refer s.5(1) of the Act). 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. Relevant to this case,

   “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.

3. 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 (refer s.36(2B) of the Act).

   Section 499 Ministerial Direction

4. 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.

   Questions for determination

5. For the Tribunal to be satisfied that Australia has protection obligations to the applicant as a refugee under the Refugee Convention, we must be satisfied about the matters referred to at [28] to [32].

6. There is no dispute that the applicant is outside Vietnam, that he fears persecution and that the grounds for his fears are one or more of the reasons enumerated in the Convention. The Tribunal accepts that the applicant’s claimed fears, if well-founded, would engage the Refugee Convention. Accordingly, a critical issue for the Tribunal on this review is whether the applicant has a well-founded fear of persecution.

7. The claims made by the applicant, if accepted, would support a finding that the applicant’s fear of persecution is well-founded. Evidence relevant to these claims are the statements made by the applicant (including his application for protection), his evidence at the hearing, information provided by the Department[i][8], country of origin information and documents provided by the applicant to support his claims. The applicant also provided a medical certificate from his general practitioner and a report from his treating psychologist. These documents are of limited value in assessing the applicant’s claims of persecution because the authors are not able to corroborate their veracity. This evidence, and the weight and relevance to the applicant’s case, is specifically addressed later in these reasons.

8. If we are not satisfied the applicant is a person in respect of whom Australia has protection obligations as a refugee under the Refugee Convention, the question that arises is whether the Tribunal is satisfied there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of his removal from Australia. The Tribunal accepts that the applicant’s [conditions] will be exacerbated if he is removed from Australia and returned to Vietnam. However, the issue is whether the removal of the applicant in the circumstances of this case will engage the complementary protection criteria in the Act.

9. Having regard to the relevant law and the matters raised by the applicant in his statements and evidence and the submissions of his representative, the questions for determination are therefore:

   (1)Does the applicant have a well-founded fear of persecution?

   (2)If not, would the removal of the applicant in the circumstances of this case engage the complementary protection provisions of the Act?

10. The question of whether the complementary protection provisions are satisfied depends not only on evidence of whether the applicant would suffer ‘significant harm’ but whether this would be a necessary and foreseeable consequence of his removal within the meaning of the complementary protection provisions. This raises legal issues about the operation of s 36(2)(aa) of the Act. The applicant’s representative made submissions on these matters both before and after the hearing. These submissions and our conclusions about the issues raised are detailed below.

    PROCEDURAL ISSUES – PRIOR TO AND AFTER HEARING

11. By letter dated 10 August 2016 the applicant was invited to attend a hearing which was listed for 8 November 2016. On 2 November 2016, the Tribunal received written submissions from the applicant’s representative together with a letter dated [in] August 2016 from [a doctor] of [a] Medical Centre. The submissions requested that the Tribunal be “mindful of [the applicant’s] ongoing psychological condition when considering his oral evidence in relation to his claims.” The submission also noted that the applicant had started to see clinical psychologist, [Psychologist A], for treatment and management and that the applicant wished to submit an opinion for consideration and an assessment would be completed within 2 to 3 weeks.

12. The letter from [the doctor] was in the following terms:

    The above named patient attend (sic) our Practice for his care. He suffers from [a condition] since an alleged episode of assault whilst he was living in Vietnam, when he was hit [with] a large wooden object.

    He also complains of memory loss at times, and seems to find it difficult to retain new information and remember details of past events.

    He has [specified conditions]. [The applicant] is currently on treatment with [specified] medications.

13. The applicant appeared before the Tribunal on 8 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented by his registered migration agent and the representative attended the Tribunal hearing.

14. Because of the submissions received about the applicant’s mental state, at the commencement of the hearing the Tribunal sought clarification from the applicant as to whether he was able to proceed with the hearing. He said that he could participate in the hearing. The applicant gave evidence and requested and was given a break. There was no issue raised during the hearing by either the applicant or his representative that he was having difficulty coping with the hearing or any difficulty in understanding the questions asked.

15. In light of detailed written submissions provided to it by the applicant’s representative, the Tribunal invited the representative to make oral submissions relevant to the review at the commencement of the hearing. Those submissions were consistent with the written submissions outlined above. The Tribunal also sought clarification as to whether there was any claim that the applicant is a member of the family unit of a person who has been granted protection in Australia. The applicant’s representative submitted that the applicant’s wife was successful upon independent review, however she was not granted a protection visa at that time. She had recently received an invitation to reapply for a temporary protection visa but did not have a protection visa at the time of the hearing. The representative confirmed that the current application was not based on s 36(2)(c) or (d).

16. At the end of the hearing the representative requested, and was given, 14 days to file any further submissions and evidence from [Psychologist A] about the applicant’s medical condition and diagnosis. The submissions and a report from [Psychologist A] dated [in] November 2016 were provided to the Tribunal on 22 November 2016. The content of the report is outlined in these reasons. In the submissions, the applicant’s representative requested an extension of time before the Tribunal would make a final decision so the applicant could attend a further six sessions with [Psychologist A] to permit an in-depth assessment of the applicant’s mental health. Because the report was inconclusive about the applicant’s diagnosis and the representative had requested an extension of time for [Psychologist A] to undertake further assessment, the Tribunal (through a Tribunal officer) notified the applicant on 29 November 2016 through his representative that the Tribunal wished to resume the hearing to take evidence from [Psychologist A] about his report. The Tribunal also wished to clarify a number of issues raised in the second submissions, including the immigration status of the applicant’s wife.

17. The representative responded by email on 30 November 2016 as follows:

    Further to your telephone call yesterday, I respectfully ask that the Tribunal consider allowing all parties to respond in writing to any requests for clarification or any further questions the Tribunal may have in relation to [Psychologist A’s] report, and our post hearing submissions. Reasons for my request is outlined below:

    Request for [Psychologist A] to attend hearing

    I would like to note that I do not have any authority or power upon which I can secure the psychologists attendance at the hearing or that I am aware of his availability. I would also respectfully suggest that it is the Tribunal’s obligation to make inquiries into the critical facts of the psychologist's report, which can be done by, inter alia, telephoning the psychologist whose details are already in your possession. We confirm we are relying on [Psychologist A’s] report and the contents of that report.

    In any event, following your telephone call yesterday, I called [the applicant’s] psychologist about the Tribunal's request. [Psychologist A] said he is unable to attend the hearing in any capacity for a number of reasons which he did not elaborate on. He indicated to me that if the Tribunal have any questions about his report, or require clarification on any aspects contained within his report, that the Tribunal put them in writing to him and allow him the time to properly respond.

    [The applicant’s] Mental Condition

    [Psychologist A] also indicated that he is beginning to make substantial progress with [the applicant] and that a request for [the applicant] to attend a further hearing would be inappropriate and detrimental to his progress, causing re-traumatization to his emotional well-being. [Psychologist A] is willing to offer further explanation in writing to the Tribunal if required.

    Post Hearing Submissions

    If the Tribunal have any enquiries into the post hearing submissions, we respectfully ask that they address these enquiries in writing to me, stating what issues they intend to raise with me so that I am availed the opportunity to make a considered response, rather than facing unknown questions that would require me to think on my feet.

18. Following this submission, the Tribunal responded on 2 December 2016 as follows:

    The Tribunal considered your email dated 30 November 2016 and responds:

    [Psychologist A’s] report and evidence

    You submit the Tribunal opt to have [Psychologist A] respond in writing.  The Tribunal has considered this, however, it does not accept that this is the most appropriate way to proceed in this matter.  The Tribunal’s view is that it may not be able to obtain the evidence it needs through what might turn into a lengthy exchange of correspondence.  Further, the Tribunal may not subsequently feel confident to place weight on [Psychologist A’s] evidence without his personal appearance in giving that evidence before the Tribunal.  The Tribunal understands [Psychologist A] is no doubt a busy professional person and it is happy to reschedule the proposed hearing time to as far as possible accommodate his, the applicant’s, your, and the Tribunal’s commitments and needs. 

    The Tribunal notes your comment that you do not have authority or power to secure [Psychologist A’s] attendance.  The Tribunal hopes that [Psychologist A] is willing to answer questions relating to his report and to his client in person before the Tribunal.  It is the Tribunal’s very strong preference for [Psychologist A] to provide his evidence in person.  The Tribunal’s preference is also not to summons witnesses, although it may do so.   

    [The applicant’s] appearance at a resume hearing

    The Tribunal notes the comments you have made in relation to [the applicant’s] mental condition.  The Tribunal considers it is still appropriate for [the applicant] to appear before it again.  The hearing is an important element of the review and the Tribunal will conduct it in accordance with all its guidelines, including its guidelines on vulnerable persons.  Ultimately, if [the applicant] does not wish to appear that is for him to determine, however, in those circumstances, the Tribunal would require clear and detailed reasons and evidence of why he is unable or unwilling to do so.

    Your post hearing submissions

    You ask the Tribunal to set out its questions in writing in respect of your post hearing submissions.  The Tribunal may put matters to you in writing before the resumed hearing, however, there may also be matters that arise during the resumed hearing which might not be anticipated.  The Tribunal is always open to consider a request from you for a short time for further written submissions after the resumed hearing. 

    The Tribunal is therefore grateful if you would liaise with [Psychologist A] and with the applicant about these matters and advise the Tribunal if you and they are available for the resumed hearing on the proposed date.  Alternatively, please let the Tribunal know the possible dates and times when [Psychologist A], the applicant, and you are available to participate in the resumed hearing.  Thank you.

19. By letter dated 5 December 2016, the Tribunal scheduled the matter for resumed hearing on 20 December 2016. The representative responded on 6 December 2016 that she would correspond with all parties involved about the Tribunal’s request and would respond. There was no further response. Neither the applicant nor his representative attended the hearing.

20. This was unsatisfactory for a number of reasons.

21. The representative’s submissions appear to proceed under a misunderstanding about the role of Tribunal. Section 424(1) of the Act provides that the Tribunal may seek any information that it considers relevant in conducting the review. Relevantly, the Tribunal may invite, either orally, including by phone or in writing a person to give such information (s 424(2)). Compliance with such an invitation is voluntary. Section 426 provides a mechanism by which the applicant may request the Tribunal to call witnesses. This process is also voluntary. The Tribunal may summons a person to appear before the Tribunal to give evidence and if the Tribunal does so it must pay the expenses of the witness (s 427 of the Act and r 14(3) of the Administrative Appeals Tribunal Regulations 2015). It is rare for the Tribunal to do so and if an applicant is seeking to rely on the evidence of another, including an expert, it would be expected that the applicant facilitate the attendance of the witness so the Tribunal can test or clarify any aspects of the evidence. Relevantly, s 5AAA of the Act provides:

    Non-citizen's responsibility in relation to protection claims

    (1)  This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

    (2)  For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

    (3)………… 

    (4)  To remove doubt, the Minister does not have any responsibility or obligation to:

    (a)  specify, or assist in specifying, any particulars of the non-citizen's claim; or

    (b)  establish, or assist in establishing, the claim.

22. The role of the Tribunal in conducting a review was discussed by the High Court in MIAC v SZIAI [2009] HCA 39. As noted by the plurality at [25]:

    The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

23. While minds may differ about what is a matter the existence of which can be “easily ascertained”, it is clear that it is the obligation of an applicant, in this case as supported by a representative, to put his or her case forward, including all relevant evidence in support of the claims. In this regard, cases in the Migration Refugee Division are no different from matters reviewed in other Divisions of this Tribunal. If the applicant seeks to rely on medical opinion, it is not appropriate or reasonable for the applicant to refuse to cooperate with the Tribunal in failing to take all reasonable steps to make the medical practitioner, or indeed a witness who the applicant has approached for a statement, available for the Tribunal to question. In conducting the review, it may be important for the Tribunal to be able to test the veracity of any statement made or the strength of any opinion. This is particularly so where there are critical issues that may go to the weight of any statement or opinion.

24. In this case, there was no explanation given as to why [Psychologist A] would not make himself available to give evidence. Rather than enter into a protracted and somewhat unsatisfactory process of providing written questions to [Psychologist A], the Tribunal invited the applicant to a further hearing specifically for the purpose of clarifying a number of issues, including clarification of certain matters raised in [Psychologist A’s] report. Consistent with the objectives in s 2A of the Administrative Appeals Tribunal Act 1975, this course was considered by the Tribunal to be the most cost-effective and timely manner in which to resolve or clarify any further issues. To assist with this, the Tribunal sought to accommodate the availability of the representative and [Psychologist A].

1. One of the issues of the Tribunal wished to clarify was the immigration status of the applicant’s wife given they were part of a family unit. When the applicant declined to attend the hearing the Tribunal wrote to the Department requesting certain information. The questions and responses provided by the Department [in] January 2017 are set out below:

   •          The current visa status of the visa applicant’s wife and child, and whether she/they have been granted protection – neither of the two above mentioned protection visa applicants have been granted protection.

   •          If the visa applicant’s wife has been granted a protection visa, or is soon to be granted such a visa, will she have a right to sponsor the visa applicant as her husband and will she be able to do that while he is onshore, or is she precluded from sponsoring her husband; NA

   •          Any other relevant information which the Department considers may assist the Tribunal in its review of this matter. In 2011 as part of a Protection Obligations Determination (POD) (non-statutory i.e. not part of an application), [the applicant’s wife, DOB] was found not to be owed protection.  In 2012 the IPA reviewer (internal DIBP review process) found [the applicant’s wife] was owed protection.  In 2016 [she] was invited to apply for a 785/790 visa and has lodged a 790 application.  In addition to the 790 application/claim/COI, as part of this assessment the delegate will consider the applicant’s claimed identity and previous IPA decision to determine whether Australia’s protection obligations are engaged.  [The applicant’s child, DOB] is listed as a dependant on this 790 application.

2. This was sent to the applicant’s representative by letter dated 13 January 2017 and the applicant was requested to provide any response or comment by 20 February 2017. The Tribunal notes it did not intend to send this information to the applicant under s 424A as after receipt of the information and preliminary consideration of the issues in the case, it did not form the view that this information was, nor would it be, the reason or part of the reason to affirm the decision under review. The information is consistent with information provided by the applicant’s representative at the hearing. More significantly, at the stage of the review when the Tribunal was considering the case it had formed the view that the information was not dispositive of the critical issues that required determination in the review. This information would have been relevant if the Tribunal had formed the view that the forced separation of the applicant from his family would, of itself, engage Australia’s protection obligations under either the Refugee Convention or the complementary protection provisions of the Act. For the reasons later outlined, we have concluded that it would not. However, as an oversight the letter of 13 January 2017 indirectly referred to the obligations under s 424A requesting a response to adverse information, in the respect of which the Tribunal acknowledges may have been confusing.

3. The applicant’s representative responded by letter dated 18 February 2017 received on 20 February 2017 that it was unclear why this information was relevant to the review and, in particular, in the following terms:

   The Tribunal has not specified any degree of certainty what information you require us to comment on.  However we are able to provide a generalised comment on the confusing decision making process of the Department.  Furthermore, without notifying us how, or for what reasons, the above information is relevant for the review and under the circumstances; we are unable to comment on that information.

   Finally, while you state you have not made up your mind about the information, we do note that our response to the confusing information “would be the reason why, or part of the reason for affirming the decision under review”.   For this reason, it is even more pertinent for you to fully elaborate and explain the relevance of the information about which you are inviting a response.

4. In summary, s 424A of the Act requires the Tribunal to put an applicant on notice of adverse information that would have an impact on its decision-making. This may be difficult to assess when the Tribunal has not finalised its deliberations. However, as observed in SZLPJ v MIAC (2007) 164 FCR 578, the question of whether s 424A(1) is engaged requires examination of the Tribunal’s state of mind, not at the time of the decision but at the time the Tribunal turns its mind to the particulars which must be provided. While this may seem somewhat inflexible and no doubt confusing when the adverse information is ultimately not considered to be determinative of the critical issues, it is nonetheless an obligation that is binding on the Tribunal and is intended to codify an element of procedural fairness. In this case, and for the reasons later outlined, the Tribunal has concluded that forced separation would not engage Australia’s protection obligations in the circumstances of this case. However, because the issue of whether the applicant would be separated from his family was claimed to be one of the critical factual matters said to engage complementary protection and because there was confusion created by the Tribunal’s communication of 13 January 2017, which is acknowledged, the Tribunal sought to clarify the position by letter dated 16 March 2017 in the following terms:

   The tribunal acknowledges the confusion caused by the letter of 13 January 2017 and seeks to clarify the issues raised as follows:

   ·The information provided by the Department about the immigration status of the applicant’s wife and [child] indicates that the applicant’s wife currently has an application for protection which is currently before the Department to determine whether Australia's protection obligations are engaged. The applicant and his [child] are listed as dependents in the application.

   ·This information suggests there is unlikely to be a forced separation between the applicant and his family regardless of the outcome of the current review. For instance, if the applicant’s wife is successful in her application for protection, the applicant may not be required to return to Vietnam. If the application is not successful, absent ministerial intervention or the granting of some other visa, the applicant’s wife would also be required to return to Vietnam.

   ·If there is no forced separation, the factual basis for the claim that Australia has protection obligations to the applicant under the complementary protection provisions of the Migration Act would not be established and would be a reason or part of the reason for affirming the decision under review.

   ·For these reasons, the Tribunal invites your comment or response in writing to the above matters by 24 March 2017.  

5. The applicant’s representative sought an extension of time to respond, which was granted, and responded on 6 April 2017 as follows:

   Whilst it is correct that [the applicant’s] [wife] has an application for protection before the Department, only [the applicant’s child] is listed as a dependent on the application. [The applicant] is listed as a member of the immediate family but his prior refusal prevents him from being listed as a dependent on his wife’s application due to a s48A and s46A bar. Whether there is a forced separation between [the applicant] and his family may depend upon the outcome of the current review.

   The Minister has found [the applicant’s wife] is entitled to protection. Given the circumstances, as things stand, any forced separation from [the applicant] will therefore result in the forced separation of the family unit. 

   [The applicant’s] wife’s application is not part of these proceedings. The outcome of the wife’s application is purely speculative, and therefore cannot be of any consideration in these proceedings.

6. Having regard to this response and the operation of s 48A of the Act, which bars certain applications for visas where an application for a protection visa has been refused or cancelled, we accept that the applicant is not listed as a dependent in his wife’s application for protection and that if the applicant’s wife is successful in her application but the applicant is not successful, there is potential for the applicant to be separated from his family for an extended period.

   TRIBUNAL HEARING

7. The following is an outline of the hearing and the evidence given by the applicant at the hearing.

8. The applicant began by confirming his year of birth is 1986.  At this point, the Tribunal questioned why, according to the delegate’s decision record, the applicant had claimed to be only 16 years of age on arrival at Christmas Island in June 2012 when he would have been 26 years old.  The applicant responded that others told him what he should say and he did not know if he would be given protection when he arrived in Australia.

9. The Tribunal invited the applicant to discuss his conversion to Catholicism.  He said that when his parents understood the principles of Catholicism they converted to that religion.  He said he was 23 years of age in 2009 when his parents converted.  He has a [sibling] who was born in [year], and [another sibling] who was born in [year].  He was born and lived most of his life in [Ha Tinh] province.  He described this as being about [distance] from Ha Tinh City. 

10. The applicant told the Tribunal that he completed 12 years schooling and then became [an occupation, which involved travelling] from his home area into [Country 1]. He said his father was also [an occupation] and they had a business in their village. He described the business as successful.

11. The Tribunal asked the applicant to explain his claim that he had been persecuted. The applicant responded by referring to some incidents where Catholics were persecuted in or around 2009. He went on to say the local authorities did not like Catholics and they treated them unfairly in many ways. He said the authorities would smash statues in churches. He said that in his village only the officials would do this. He said the people who would smash church property were members of the public security and that this harassment took place often. When asked what he meant by “often” he said there were three of four times where they destroyed such things as the church alter at [a specified] church.  When asked if he could recall the name of the priest there, the applicant was unable to do so.

12. When asked to discuss his religion prior to 2009, the applicant said he was previously a Buddhist. When asked what made him decide to convert to Catholicism, he said he knew a young Catholic girl. He also said he was attracted to Catholicism because this religion only accepted a husband and wife, without a third person, and that if one dies the other can remarry. He also observed that Catholic people are united.

13. When asked whether he has ever been prevented from going to church to worship, the applicant said that he was. He said the area where he was living was in a hillside area and Catholics were considered an ethnic minority and so any time they had activities the authorities knew about it. When asked to explain how he was prevented from attending church or worshipping, the applicant responded by saying the local government does not like Catholics and does not want Catholicism to grow. He referred to a recent incident in the Nghe An province where Catholics organised the demonstration but there was “trouble” with authorities. The nature of the trouble was not explained and the applicant said he had learned about this through the Internet after coming to Australia. He also said he had learned from social media and from “VOA” (Voice of America) that Catholics in Vietnam were forced to surrender their property. 

14. The applicant was asked to describe his role in the church.  He replied that he was “not a normal Catholic” but he was involved in Catholic activities.  When asked to describe those activities, he said he helped people who were in hardship and helped children with disabilities.

15. The Tribunal asked the applicant whether he had received any of the Catholic sacraments. In reply he said every Sunday and evening prayers.  When asked whether he knew about the sacraments, the applicant replied saying that he knows that Sunday is important and that when he became a Catholic the priest helped him in confirmation. He said Catholics are baptised but because he was old he was given confirmation.

16. The Tribunal asked the applicant to provide detail on his claim that the authorities stopped his family business.  He said the authorities put pressure on the family business. He said authorities called his parents to go to their office and found different ways to make things difficult for his family. The applicant asserted that authorities created pressure on the business and customers and that they listed his family as a member of a group that were to be watched. 

17. The Tribunal asked whether anything else that happened to his parents. He said after his parents started assisting the Church with renovations, the government asked them to go to re-education camp.  He said he was not sure where that was but they went about 2 or 3 times.  He said they were ordered to do bush clearing. The Tribunal asked the applicant why he had failed to refer to his parents being beaten or their house being destroyed when in fact he had made such claims before the delegate and in his statement.  He replied that he thought the questions of the Tribunal sought additional information.  The applicant was reminded to put all his claims to the Tribunal but did not expand on this claim in his oral evidence.

18. The Tribunal asked the applicant about his parents going to [Country 1].  He said they were under pressure so they went to [Country 1]. Officials confiscated his parents’ property and did not pay any compensation.  When asked to clarify what he meant by “property”, he said the authorities did not take the land or the house but they took the television sets and furniture and a vehicle.  This occurred in 2011.  He said the officials used the vehicle for their own benefit.  He said his father had [vehicles] and there was [another vehicle] which belonged to the applicant, which he sold before coming to Australia. The applicant said that the officials confiscated his father’s [vehicles] but when asked to expand on this he said his father’s [vehicles] were left behind in the re-education camp. The officials were said to be the “public security” officials from the village and officials from border force.

19. The applicant told the Tribunal that before his parents left for [Country 1], his siblings went to live with his relatives in the North of Vietnam.  The Tribunal asked him why he did not accompany his siblings or his parents.  He said he wanted to finish what his parents were doing and so he remained. When the Tribunal raised with the applicant that this suggested the applicant did not fear any serious harm, he responded that it was not until the events of Christmas 2011 that he became concerned. Before this time there had been “problems” but they were not too serious and he could deal with them. The officials focused on people with money and because he was not rich he was not a target.  He was able to continue living in the family home. However, after he attended the [December service] in 2011 things changed. 

20. Because the applicant had provided little detail during his oral evidence about the circumstances leading up to his parents’ departure for [Country 1], the Tribunal asked the applicant to explain this in more detail. The applicant replied by saying his parents were experienced people and they had confronted a lot of difficulties. The government put pressure on them and they were deprived of their basic civil rights.  He went on to say that his parents were assaulted, degraded, hit and insulted. This had forced them to leave Vietnam.

21. The applicant told the Tribunal that he did not have a normal life in Vietnam and that he had conflict with the government. He said he was assaulted and summonsed about the incident that occurred on Christmas Eve 2011. He said during that incident the priest was assaulted. He tried to stop this but was hit and he lost consciousness.  When asked why in such circumstances he was not arrested when according to his evidence others were, he replied that he did not have a significant profile. The applicant was not a leader in the church nor was he involved in anti-government activities.

22. The Tribunal asked the applicant if he had been involved in any anti-government activities in Vietnam. He replied that he had not but added that he was involved by reason of his Catholicism.

23. The Tribunal referred the applicant to his claim that he had been summonsed and asked whether he was able to provide a copy of the summons document.  He told the Tribunal that a childhood friend in Vietnam had found the document for him. The document was kept in a small cabinet in his family home. Even though his family home had been destroyed small things in the house remained and the friend had been able to recover a copy of the document.  The Tribunal expressed its concern over his account of this as it appeared unclear, vague, and somewhat implausible, and as a result it may not accept that he had in fact been summonsed.

24. At this point in the hearing, the applicant submitted a document dated [December] 2011 which was said to be a summons that was issued to him by authorities. The document was interpreted by the interpreter for the Tribunal. It records that the applicant was asked to report at [time] hours [in] December 2011 to the village police “to work with us regarding the organisation, gathering, praying illegally and caused nuisance at a public place. The holder is to present this paper to the village police officials.” When asked when he had received a summons, the applicant said he received it on the same day of issue, namely [December] 2011. He said this was the only time that he was beaten and he was hit on the back of the head and his memory is still affected. He also said he does not understand why when he exercises or thinks a lot he gets a pain in the head.  He said his head has been scanned while he has been in Australia but nothing has been found. The Tribunal takes this to mean that the applicant was advised there was no abnormality identified as a result of these investigations.

25. Given there were a number of what seemed to be significant inconsistencies between the claims made by the applicant in his statutory declaration sworn [in] February 2013, which was provided to the Department and to the Tribunal, and the reasons he gave for coming to Australia when he was interviewed on Christmas Island [in] June 2012, the Tribunal discussed these matters with the applicant under the procedure set out in s 424AA of the Act. These provisions permit the Tribunal to provide clear particulars of information that would be adverse to an applicant’s case during the course of a hearing. In summary, the Tribunal noted that at the earlier interview on Christmas Island when asked why he had left Vietnam the applicant said he came to Australia to accompany his older brother and there were difficulties in Vietnam because of his older brother. The entry interview recorded that the applicant was also asked whether anything directly happened to him to make him leave, he responded to the effect, not to him personally as he was studying at school and there was no other reason for leaving Vietnam. The Tribunal explained that these earlier statements were so inconsistent with his subsequent claims that it cast doubt on the credibility of his current claims and that, subject to his response, this would be the reason or part of the reason why the Tribunal would affirm the decision under review.

26. The applicant declined the offer of adjournment and said he could respond. He said when he arrived Christmas Island he did not realise how important his statements were. He said if he knew Australia would be able to protect him because of his fears he would not have listened to people during his journey by boat. He was confused, worried and he had risked death to travel by boat to Australia.  He said that when he was on the boat the organiser wanted him to be included in his profile. It was not until eight months after arriving in Australia when he made his statutory declaration that he realised he could make these claims.

DECISION

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

FURTHER ISSUES

168. Having regard to the applicant’s circumstances, in particular those matters set out at [159], and the ministerial guidelines relating to the Minister’s discretionary power under s.417 set out in PAM3 ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

Jan Redfern
Deputy President

Tony Caravella
Member

[8] Including the applicant’s entry interview, the application for protection, submissions made by the applicant and his statement of [February] 2013 and the decision record dated [in] February 2014.