1608348 (Refugee) - [2019] AATA 4030

1608348 (Refugee) [2019] AATA 4030 (17 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608348
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Christopher Smolicz
DATE:17 January 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 17 January 2019 at 9:42am

CATCHWORDS
REFUGEE – protection visa – Vietnam – Complementary Protection – fear of violence from business competitor – attacks on farm – land resumption – police corruption – actions against the Communist government – alleged illegal departure – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas on 28 October 2013 and the delegate refused to grant the visas on 8 May 2016.
The applicants appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from [name], the first named applicant’s sister in Vietnam.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by their registered migration agent.
BACKGROUND - EFFECT OF PRIOR APPLICATIONS FOR PROTECTION
The applicants are husband and wife. On 12 July 2010 they were granted a [temporary] [visa] and lawfully arrived in Australia [in] September 2010. They travelled to Australia as holders of validly issued Vietnamese passports.
They applied for Protection visas (the first protection visa application) on 1 December 2010.
The first named applicant (the applicant) declared that he owned a successful [company] in Vietnam. In May 2010 one of his managers quit and opened a company doing the same business and took many of his customers. The applicant said he was threatened by strangers and told to stop his business. The strangers followed him and his life was threatened. He realised his ex-manager was behind this. He fled to Australia with his wife.
On 10 May 2011 a delegate of the Minister for Immigration and Border Protection found that the applicant’s claims were neither convention-related nor well-founded, referring among other things to country information suggesting that the Vietnamese authorities would provide protection for the applicant from such harm.
The applicants sought review of this refusal at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1608348 (Refugee)

Details

AGLC: 1608348 (Refugee) [2019] AATA 4030
Case: [2019] AATA 4030
Decision Date: 17 January 2019

CaseChat Overview and Summary

The applicants, a husband and wife, sought review of a decision not to grant them Protection visas. Their claims stemmed from alleged threats and violence from a former business manager in Vietnam, who they claimed had political connections and was behind attacks on their farm and business. The applicants had previously applied for Protection visas, which were refused, but were able to make a second application on complementary protection grounds due to the timing of the introduction of these provisions.

The primary legal issue before the court was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants' removal to Vietnam, they faced a real risk of suffering significant harm. This required an assessment of their claims for complementary protection under section 36(2)(aa) of the Migration Act 1958 (Cth). The court also considered whether the applicants could access state protection in Vietnam and the genuineness of documentary evidence submitted to support their claims.

The court, through the Tribunal, reasoned that while the applicants had experienced issues with a former manager and subcontractors involving criminal conduct, these issues were unlikely to persist given the applicants' departure from Vietnam. The Tribunal found the documentary evidence, including letters and police invitation cards, to be unconvincing and likely fabricated for the purpose of the application, noting significant delays in their production and inconsistencies in their content. Furthermore, the Tribunal considered country information regarding the effectiveness of state protection in Vietnam and concluded that the applicants would have access to such protection. Consequently, the Tribunal was not satisfied that there were substantial grounds for believing a real risk of significant harm existed.

The Tribunal affirmed the decision not to grant the applicants Protection visas, finding that they did not meet the criteria for complementary protection, nor the related criteria under sections 36(2)(b) or (c) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicants were represented in relation to the review by their registered migration agent. BACKGROUND - EFFECT OF PRIOR APPLICATIONS FOR PROTECTION The applicants are husband and wife. On 12 July 2010 they were granted a [temporary] [visa] and lawfully arrived in Australia [in] September 2010. They travelled to Australia as holders of validly issued Vietnamese passports. They applied for Protection visas (the first protection visa application) on 1 December 2010. The first named applicant (the applicant) declared that he owned a successful [company] in Vietnam. In May 2010 one of his managers quit and opened a company doing the same business and took many of his customers. The applicant said he was threatened by strangers and told to stop his business. The strangers followed him and his life was threatened. He realised his ex-manager was behind this. He fled to Australia with his wife. On 10 May 2011 a delegate of the Minister for Immigration and Border Protection found that the applicant’s claims were neither convention-related nor well-founded, referring among other things to country information suggesting that the Vietnamese authorities would provide protection for the applicant from such harm. The applicants sought review of this refusal at the Refugee Review Tribunal (RRT). On 5 August 2011 the RRT affirmed the Department’s decision. The RRT found that the applicant’s claims were not Convention-related and there was no genuine and well-founded fear of persecution. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. However, s.48A does not prevent a person from making a further application for a Protection visa on complementary protection grounds where the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012.[1] As a result, the applicants were not prevented from making a second application for a Protection visa on 28 October 2013. [1] SZGIZ v MIAC (2013) 212 FCR 235. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). The Tribunal must therefore consider the applicants’ second application for Protection visas having regard to the “complementary protection” criteria. RELEVANT LAW The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class. As noted above, in the present case, the refugee criterion is not relevant in relation to any of the applicants in the present matter.Complementary protection criterion

Evidence

Evidence Before The Court

In summary the Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal has formed the view that the certificate is valid. The Tribunal explained to the applicant that the documents subject of the certificate are internal Departmental working documents which are not relevant to this application. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Summary of substantive claims before the Tribunal Only the applicant submitted his own claim for protection (form 866C). The second named applicant completed form 866D and did not make her own claims for protection and is relying on her membership of his family unit. The applicant said that he operated a [farm] business in Vietnam. In 2010 one of his managers quit the job, set up a competing business and stole many of the applicant’s clients. The ex-manager belonged to a family with political connections and many of his relatives were communists during the Vietnam War. In July 2010 a suspicious fire burnt out his office; however he was able to rebuild and continue his business. A few weeks later, some strangers threatened him that his life would be in danger if he did not give up his business. He claims that he knew his ex-manager was behind the threat so that he could get rid of him and dominate the market. The applicant said that he refused to quit the business. He claims he was followed by the same strangers. He claims these people were close friends of his ex-manager and they were people with a “communist political background”. He feared that they would harm him or his wife. His house was also burnt and the [farming areas] were poisoned. He and his family were threatened with violence and bodily harm. His family members have been banned from working on his [farm]. He feared they would harm him or his wife and fled to Australia. The applicant made the following new claims which were not part of the first protection visa application. He claims that the “local police security department” have accused him of illegally escaping overseas to act against the Communist government. He states that this is not true and he would never do anything against the Communist government in Vietnam. He fears harm from the ex-manager who wants to keep him from competing with his business. He claims the ex-manager has teamed up with the local public security officers. The local government and local public security officers in Vietnam are very powerful and would not protect him if they knew he applied for a Protection visa in Australia. He claims the local security officers threatened to put him in jail for acting against the Communist government if he returned to Vietnam.

Decision

Reasons for decision

The Tribunal has also had regard to the applicant’s profile in circumstances where he will be returning to Vietnam after spending over eight years living in Australia. The Tribunal notes that Vietnamese nationals residing overseas are referred to as Viet Kieu. A 2010 working paper describes the Vietnamese government’s 2004 formal guiding principles “for all governing bodies to follow when creating new policy toward the Viet Kieu”. Two of these principles are non-discrimination against “any past history or current status of the overseas community as long as they share the goals of nation building and promoting the growth of Vietnam”; and respect for the rights of overseas Vietnamese, while “encouraging them to promote Vietnamese culture and tradition”.[3] [3] Pham, A T 2010, The Returning Diaspora: Analyzing overseas Vietnamese (Viet Kieu) Contributions toward Vietnam’s Economic Growth, DEPOCEN, Working Paper Series No. 2011/20, 27 November, pp. 17, 18, >The Tribunal finds that the applicant does not have an adverse profile with the Vietnamese authorities because he was apprehended by the authorities around [specified year] or because his brother fled Vietnam or because of the time he has spent in Australia. The Tribunal has also considered the applicant’s evidence that his land has been taken by the authorities in Vietnam since he arrived in Australia. The Tribunal found the applicant’s evidence about the circumstances in which his land was taken vague and lacking in detail. When questioned at the hearing he said that he lost legal documents in a fire which proved his association with the land. The Tribunal notes that the applicant first raised this evidence at the hearing and it is not referred to in any of the statements provided by the applicant’s family members. The applicant was unable to explain how the confiscation of land was relevant to his claims. The Tribunal does not accept the land was taken by the authorities as retribution or to prevent him from engaging in his business. The Tribunal notes that his sister is still living on the [farm]. The Tribunal does not accept that the authorities took any of the applicant’s land in Vietnam. The applicant gave evidence that he has not been involved in politics in Vietnam. He is not a member of any political party in Vietnam. The Tribunal finds that the applicant has no political profile and is not a political activist. The Tribunal does not accept that the applicant will be imputed with an anti-Vietnamese government political opinion because his family escaped from Vietnam.Documents from VietnamOn 19 February 2014 the applicants’ migration agent provided the Department with copies of the following documents purporting to be from Vietnam:[4]· “Invitation Card” dated [in] December 2011 purportedly issued by [Station 1] Police department in Vietnam. The summons is requesting the applicant’s brother ([named]) to attend the police station to discuss the applicant’s disappearance. · “Invitation Card” dated [in] February 2013 purportedly issued by [Station 1] Police department in Vietnam addressed to the applicant’s mother ([named]). According to the summons the police want to question her about the applicant’s anti-government conduct abroad. · Letter dated 10 October 2011 purportedly written by [the applicant’s brother] to the applicant.· Letter dated 9 November 2012 purportedly written by [the applicant’s sister] to the applicant.[4] The Tribunal notes that the same Vietnamese documents were provided to the Tribunal prior to the hearing, however two different translations have been provided of the same documents. The Tribunal discussed the documents with the applicant at the hearing. The Tribunal has a number of concerns about the documents.The Tribunal is concerned that the documents were only provided to the Department in February 2014. The agent did not provide an explanation as to why the documents were not provided earlier or how they came to be in the applicant’s possession. The Tribunal finds that the letters are addressed to the applicant in Australia and therefore would have been known to him before he lodged the second protection visa application in October 2013. The Tribunal has had regard to the content of the letters and finds them to be vague and lacking in detail. For example, [the applicant’s sister] claims in her letter that she became aware the local authorities were bribed by the people who were trying to cause the applicant harm. She claims that “according to my knowledge the local government had concluded that you [the applicant] were the betrayer of the country due to implementing the meeting order of the police and escaping overseas and protesting them”. It is surprising that the applicant’s sister would be making such claims over two years after the applicant departed Vietnam. It is unclear what enquiries [the applicant’s sister] made and how she became aware of this information. As stated above, the applicant has not engaged in any anti-government conduct in Australia. Both letters allege that the police are seeking the applicant because he disobeyed their order and did not appear in the local police office but escaped illegally. As stated above the applicant did not escape Vietnam illegally. The applicant’s statement of claim makes no reference to him disobeying police orders.The Tribunal does not accept the letters were actually written on 10 October 2011 and 9 November 2012 as claimed. The Tribunal finds the letters were specifically drafted for the purpose of the protection visa application. The Tribunal finds the letters are not objective and contain false information about the harm the applicant fears in Vietnam. The Tribunal has placed no weight on this evidence. The Tribunal has also considered the Invitation Cards. The Tribunal has the following concerns about this evidence and does not accept that the Invitation Cards are genuine documents. The Invitation Cards suggest that the police in Vietnam questioned the applicant’s brother [in] December 2011 about his (the applicant’s) disappearance and questioned his mother [in] February 2013 about the applicant engaging in anti-government conduct abroad. The Tribunal finds it surprising that the applicant would be provided with copies of the Invitation Cards from Vietnam but no correspondence or statements have been provided by the brother or mother addressing the Invitation Cards and their dealings with the police. The Tribunal finds it unusual that the first Invitation Card was issued to the applicant’s brother over one year after the applicant departed Vietnam and the second card was issued almost two and half years after the applicant departed Vietnam. The Tribunal is concerned that the applicant did not mention this evidence in his protection visa application and the documents were only provided to the Department by the agent in February 2014. As detailed above the Tribunal does not accept that the applicant is a person of interest to the authorities in Vietnam. He did not escape from Vietnam illegally. He has not engaged in anti-government conduct. It therefore seems illogical that the police in Vietnam would seek to speak to his family about his “disappearance” and his anti-government conduct abroad.In assessing the weight the Tribunal gives to the Invitation Cards, the Tribunal has also had regard to DFAT advice that document fraud is common in Vietnam. In conclusion, having considered the applicant’s evidence, his profile, the content of the documents and delay in their production, the Tribunal finds that the documents are not genuine.As discussed above the Tribunal accepts the applicant had problems with his subcontractors and/or former manager and the subcontractors and/or former manager engaged in criminal conduct directed towards the applicant. The Tribunal finds that the purpose of the conduct was to steal produce, damage the applicant’s business and prevent him from competing in the market. He left Vietnam in September 2010. In the circumstances, the Tribunal does not accept that the subcontractors and/or ex-manager would have any further interest in the applicant or his family. The Tribunal does not accept that the applicant’s family have continued to experience problems from the subcontractors, ex-managers or ‘thugs’ since the applicant has been in Australia. The Tribunal notes that the applicant’s sister has continued to live on the [farm] and the applicant will be able to resume his farming activity when he returns to Vietnam in the future. In the circumstances the Tribunal does not accept the subcontractors and/or ex-manager or any of their ‘thugs’ would seek the assistance of the police to frame and intimidate the applicant in circumstances where he had left Vietnam and was no longer operating the business. Having assessed the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam there is a real risk that they will suffer significant harm.State protection in Vietnam Country information available to the Tribunal states that internal security is the responsibility of the Ministry of Public Security. There are police organisations at the provincial, district and commune (local) levels over which people’s committees exercise some authority.[5] There are two core forces: the People’s Security Force (An ninh Nhan dan), responsible for national security, and the People’s Police Force (Canh sat Nhan dan), which is responsible for social order and public safety.[6] The People’s Police force handles traditional police work such as neighbourhood policing, traffic control, household registration, and the issuing of identification cards.[7] Police are effective in maintaining public order but have limited capacity in other areas, especially investigations. While the Ministry of Public Security is responsible for internal security and controls the national police, in practice, provincial and local-level police often maintain significant discretion in their activities.[8][5] ‘Public Insecurity: Deaths in Custody and Police Brutality in Vietnam’, Human Rights Watch, 16 September 2014, CISA447F082797, p.14. [6] ‘Public Insecurity: Deaths in Custody and Police Brutality in Vietnam’, Human Rights Watch, 16 September 2014, CISA447F082797, p.14. [7] ‘Public Insecurity: Deaths in Custody and Police Brutality in Vietnam’, Human Rights Watch, 16 September 2014, CISA447F082797, pp. 5-8. [8] ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, OGD95BE927332, pp.6-7. As detailed above the Tribunal finds that the applicant was able to report the conduct of his subcontractor/managers to the police in Vietnam. The Tribunal does not accept the applicant’s claim that the police did not take action because subcontractors/managers had connections to the Communist party in Vietnam. As detailed in the delegate’s decision this evidence was never provided in his first protection visa application.The Tribunal has had regard to the country information detailed above, the applicant’s profile and personal circumstances in Vietnam and finds that he and his wife will have access to state protection in Vietnam. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk they will suffer significant harm. The Tribunal finds the applicants do not meet the criterion for complementary protection set out in s.36(2)(aa).For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.DECISIONThe Tribunal affirms the decision not to grant the applicants Protection visas.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.