1615987 (Refugee)

[2019] AATA 3755

1615987 (Refugee) [2019] AATA 3755 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615987

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 April 2019 at 12:03 pm (WA time)

DATE OF WRITTEN RECORD:                1 May 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 May 2019 at 12:23pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – protest against mining project – harassment by police, local and provincial governments – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36
Migration Regulations (Cth), Schedule 2

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.

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 April 2015 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2.    At the hearing on 4 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

STATEMENT OF DECISION AND REASONS

3.    Attached is the corrected transcript of those reasons, given at the hearing.

DECISION

4.    The Tribunal affirms the decisions under review.

Dr Colin Huntly
Member

Corrected Transcript

ORAL DECISION OF MEMBER HUNTLY  [11.04 AM]

Introduction

5.    The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations.  Applicants must either be a person in respect of whom Australia has protection obligations under the refugee criterion as spelled out in the Article 1 of the Convention or on complimentary protection grounds.  Where relevant, the Tribunal has taken into account policy guidelines which are prepared by the Department of Immigration on refugee law and complimentary protection and any country information assessment prepared by the Department of Foreign Affairs and Trade, in accordance with Ministerial Direction No.56.

6.    Before turning to my findings, I note that in questions of credibility I need to give the benefit of the doubt, but that this should not lead to an uncritical acceptance of any and all allegations made.  It is for the applicants to make their case in as much detail as possible.  Greater weight may be given to one piece of evidence against another and there is no rule that there has to be a positive state of disbelief before adverse assessments are made.

7.    The Tribunal notes that, in order to be eligible for protection in Australia, an applicant must have a well founded fear of persecution in the receiving country.  Before proceeding to consider whether or not an applicant has an objectively well founded fear of persecution in that country, the Tribunal is entitled to consider whether or not the applicant subjectively holds a genuinely well founded fear of persecution in that country.

8.    The Tribunal notes that it is reasonable to give the benefit of the doubt to applicants whose claims are plausible and credible but this should not lead to an uncritical acceptance of any and all allegations made.  It is also noted that, in reaching a satisfaction on the evidence the Tribunal is entitled to attribute greater weight to one piece of evidence against another and the decision maker is not required to have rebutting evidence available before finding that an assertion by an applicant has not been made out.  The Tribunal also notes that it is for an applicant to make their case in as much detail as possible.

Procedural history. 

9.    The applicant applied for a Protection visa on 30 June 2014. 

1. The Tribunal notes that the applicant originally applied for a protection class XA visa covered by operation of s.45AA of the Act and Regulation 2.08F of the Migration Regulations.  From 16 December 2014 the application is taken to be and have always been a valid application for a temporary protection class XD visa and is taken not to be and never have been a valid application for a protection class XA visa.  The Tribunal has reviewed the departmental files relating to this application and is satisfied that this is indeed the case with respect to this applicant.

2. A delegate of the Minister for Immigration refused theapplicant’s deemed application for a subclass XD visa on 21 April 2015. 

3. On 29 April 2015 the applicant applied to the then Refugee Review Tribunal for a review of the delegate’s decision.  On 19 April 2016 the applicant was invited to appear before the Tribunal to give evidence and present arguments.  The hearing was initially scheduled for 1:00 pm on 11 May 2016, but on 22 April 2016 the hearing was rescheduled to 2 pm on 11 May 2016.  When the applicant did not appear for the hearing at the appointed date and time, the Tribunal as then constituted, attempted to contact the applicant.  Having reviewed the Tribunal files, the Tribunal as then constituted, decided to proceed to a decision on the papers in the absence of a hearing.

4. By a decision dated 11 May 2016 the Tribunal, as then constituted, affirmed the decision not to grant the applicant a Protection visa and the applicant was notified in the normal course of the decision and the written reasons for that decision.

5. The Tribunal notes that the applicant thereafter exercised his right of appeal to the Federal Circuit Court of Australia.  In due course, the Federal Circuit Court of Australia, in the matter of BLQ16 v Minister for Immigration and Border Protection and anor dated 27 December 2016, ordered that the decision be quashed and that the matter be remitted to the Tribunal for reconsideration according to law.  The specific jurisdictional error that was noted by the Court in its decision as having been made by the Tribunal as then constituted, was due to the failure of the prescribed period of notice of the hearing.  When remitted, this matter was reconstituted to the Tribunal as presently constituted.

Background

1. The applicant appeared before the Tribunal on two occasions following remittal, namely; on 21 January 2019 and, again on 4 April 2019, to give evidence and present arguments.  The applicant was not represented in these proceedings by a registered migration agent.  The Tribunal was assisted at both hearings by an interpreter fluent in both English and Vietnamese languages.

Applicant identity. 

1. The Tribunal has had regard to the documents on which the Department determined the applicant to be a citizen of Vietnam following the applicant’s irregular maritime arrival to Australia on 30 May 2013.  This documentation includes the applicant’s identity card from Vietnam.  On the basis of this information the Tribunal is satisfied that the applicant is a citizen of Vietnam and that the country of reference for the purposes of assessing Australia’s protection obligations is Vietnam.

2. Vietnam is also the applicant’s receiving country as identified in s.5 of the Act with respect to any complimentary protection assessment.  The Tribunal therefore finds that, pursuant to s.36(3) of the Act the applicant does not have statutory effective protection in a third country.

Written Claims

1. By a Statutory Declaration sworn by the applicant on 12 June 2014 he declares that he is a Buddhist of Vietnamese ethnicity and a Vietnamese citizen.  He declares he was born in [year] in Ha Tinh, Vietnam.  That he is married and has [children] who continue to live in Vietnam.

2. Under the heading “Why I left Vietnam” the applicant claims that, in early 2006 he operated a [business] on the beach in Ha Tinh province.  He claims there was a mining company in Ha Tinh and that the Chairman of that company was an individual named [Mr A].  He declares this person was promoted to the position of [Government official 1] in 2007, and [Government official 2] in 2013.  The applicant declares that in 2006 the mining company started an exploration project close to his area of business.  He declares that the residents of [Village 1] including himself objected to the exploration project, as they were afraid that the sand mining excavations would cause damage to their livelihood.

3. He claims there was a protest and police dispersed the crowd.  He claims he was attacked by the police officers during the protest but, nonetheless excavations proceeded in front of his [business].  He declares he was offered minimal compensation and had to close down his [business].  He claims the mining company later returned his business and land to him at the end of 2016 and that he reopened his [business].  He claims he was subjected to extortion and harassment from local police officers after that time.

4. He then claims that, in December 2012 people from other areas came to the business to load sand to take it somewhere else for sale.  He again claims that he was the subject of vicious police harassment at that time when he protested this.  He claimed that he then had to go to the local police station where he was accused of obstructing police and was threatened with imprisonment if he did so again.  As a result of this intimidation and harassment he decided to close his business and flee the country.

5. He claims this threat from officials in the area continues and that he will be harmed by the police, local government authorities and higher authorities.  He claims no government authority would protect someone in his position who is alleged to be antigovernment.  He declares he would be equally at risk anywhere in Vietnam.  He declares that [in] 2013 a member of the Vietnamese Police Force came to [Detention Centre] and asked him questions.  He claims that after this his family was threatened in Vietnam.  This has increased his fear of returning to the country.

Applicant Claims Considered. 

Sand Mining/Land Dispute/Protesting

1. With respect to the evidence relating to the sand mining, the Tribunal notes that when first questioned by the Tribunal, the applicant was extremely vague about the geographic location where this occurred.  At the first hearing with the Tribunal, the applicant was unable to locate the place in which these events occurred by means of Google Maps.  In particular when asked to find the place in Vietnam where these events are alleged to have occurred, the Tribunal located the nearest city, which was Ha Tinh.  On a number of occasions the Tribunal asked the applicant to manipulate the image to indicate where these events had occurred.  On each occasion the applicant zoomed away from Vietnam until the region showing the entire country as a small part of the Indo-Chinese peninsular was visible and declined to provide any more specificity.

2. The Tribunal expressed its dissatisfaction with this form of response at the first hearing and adjourned proceedings to another date to allow the applicant to provide a suitable map showing where the claimed events had occurred.  The Tribunal notes that between the first and second hearing the applicant did, in fact, provide a map, which appears at page 78 of the Tribunal files, together with some supporting photographs.  The Tribunal notes that this data does coincide with prior received information about the certificate of business registration relating to the [businesses] registered by the applicant in [Village 1], [Ha Tinh province].  The Tribunal accepts that this is indeed the location of the business that the applicant has referred to in his claims.

3. As discussed with the applicant at the second hearing, however, this Google Maps imagery does indicate that the sand mining location near the business to which the applicant refers appears to have been disused for many years and that the sand mining enterprise appears to have relocated about four kilometres to the south, a site which is also clearly visible from Google Maps.

4. During the course of the hearing the applicant indicated that sand mining had occurred all along the coast.  The bare facts of the applicant’s claims appear to be made out by reference to the Google Maps imagery.  The Tribunal notes however that the area in question in which his business premises are located is surrounded by residential lots.  While the applicant’s business appears to be uniquely located between the disused sand mine and the beach, sand and titanium mining in the area appears to have affected the entire region, particularly at the coastal side.  Particularised impacts to the applicant’s property in this respect is not demonstrated in the relevant imagery.

5. In the course of his evidence, the Tribunal notes that the applicant indicated that what was once a very large and significant employer in the area is now much smaller with the related workforce depleted to around 10 per cent of its once peak level.  The applicant also indicated that, over the years, the exploitable minerals have been depleted.  It was also his evidence that the mining focus of this business enterprise has now spread beyond [Village 1].

6. The Tribunal notes that the applicant’s immediate and extended family has continued to reside in the area which is the focus of his claims for protection to the present time, and that while his [child] was educated in [Country 1] [he/she] has returned to Vietnam and lives with [his/her] own family in Da Nang.  The Tribunal particularly notes that the applicant’s wife and [age] year-old [child] and [his/her] family and the applicant’s [age] year-old [child] all reside in [Village 1] as they did before the applicant’s departure.

7. The Tribunal notes that the applicant provided very little detail when invited to do so in the nature of dates and times and people or other corroborative evidence for any of his claims relating to the land disputes.  While the Tribunal is prepared to accept that the location of his business presented difficulties between himself and the sand mining company as some time in the past, taking into account the lack of detail in the applicant’s evidence relating to these disputes and lack of corroborating evidence and also taking into account the fact that both he and his family resided peacefully in the area for many years suggests that whatever disagreements may have existed between himself and the mining company were not major even at the time when he claims they occurred.  These issues appear, on the basis of the applicant’s own evidence, to have become even less significant with the depletion of the exploitable mineral resources in the area.

8. The disused state of the applicant’s business in its current location, a business which the applicant implies still remains within his family’s ownership, could equally be due to his absence from the country since 2013.  Accordingly, after weighing all of the applicants evidence, the Tribunal does not place any weight on the applicant’s claims to have fled persecution from Vietnam on account of land use or sand mining on land near his business in [Village 1].  In making this finding, the Tribunal notes that the applicant continued to reside in [Village 1] for five months before departing Vietnam.

Irregular Departure

1. During his arrival interview on 5 June 2013 when the applicant was asked if “police and security or intelligence organisations impact on your day to day life in your home country”, the applicant replied “No”.  The applicant also claims to have fled Vietnam, however the Tribunal notes that he left Hanoi Airport lawfully processing through immigration clearance using his own passport.

2. The Tribunal has had regard to DFAT country information report for Vietnam 21 June 2017, in particular treatment of returnees.  The Tribunal notes that at [5.18] it notes that the Vietnamese Constitution provides for citizens to freely travel abroad and return home from abroad.  With respect to conditions facing returnees at [5.21] the Tribunal notes that DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the government.

3. Accordingly, the Tribunal is satisfied that the applicant did not depart Vietnam illegally and would not be subjected to persecution on account of this claim.  The Tribunal also finds that this implied claim to a well-founded fear of persecution is not subjectively held by the applicant.

Data Breach

1. There is no evidence before the Tribunal that the data released by the Department in 2014 contained any information about the protection claims that the applicant made.  The Tribunal also notes that that the information was only accessible online for a short period of time before it was removed from the web.  Of further relevance to this particular point the Tribunal notes that the applicant’s family has remained unharmed in Vietnam.  The Tribunal notes that the applicant’s claims that they have been subsequently harassed by local police.  However, for reasons that will be discussed below, the Tribunal finds that these claims are without credibility.  Accordingly, for the purposes of its assessment, the Tribunal finds that the applicant has no genuine basis for holding a well found fear of persecution on account of the data released by the Department.

Visit to [Detention Centre] by Vietnamese Officials

1. The applicant claims to have been visited by Vietnamese officials in [Detention Centre] [in] 2013.  The Tribunal accepts the applicant may have been interviewed by officials representing Vietnamese authorities who were invited to visit the Detention Centre on that date.  The applicant has claimed that, as a result of this visit his family in Vietnam was visited and threatened.

2. When the Tribunal asked the applicant why his family continued to remain in a village with declining economic prospects and where they were facing localised persecution, the applicant provided no adequate explanation.  The Tribunal notes that this is not consistent with DFAT’s report relating to internal relocation at [5.12]:

3. Internal relocation is common with large scale urbanisation occurring in recent decades alongside other migration for economic purposes.

4. When the Tribunal questioned the applicant about his legal departure from Vietnam, he claimed that his conflict with officials in Vietnam was localised.  However, the applicant also claimed that his family were subject to harassment by Vietnamese officials after national-level officials visited [Detention Centre].  The Tribunal finds that there is a material conflict in logic in the applicant’s claims in this respect.  Either his family was subject to official persecution in Vietnam, or it was not.  The fact that his family has continued to reside in a location where, if the applicant’s own evidence is accepted, up until 2013 they were subjected to localised persecution.  The Tribunal notes, for example, that the applicant’s [child] has relocated to Da Nang.  The opportunity for the applicant’s wife and his youngest [child] to relocate to Da Nang existed, and still continues to exist, but has never been acted upon.  These facts do not align with the applicant’s principle claims.  There is also the question as to whether or not the applicant would legally depart the country and leave his dependent spouse and dependent child in the way of harm without, at the very least, trying to obtain their safe relocation to a part of Vietnam where they would not be continue to be exposed to localised persecution.

5. The applicant’s claims with respect to the link between Vietnamese officials’ visits to [Detention Centre] is, therefore vague, inconsistent, implausible and lacking in credibility.  The applicant’s evidence in this respect suggests that he is not a person of any adverse interest to the authorities in Vietnam.  Accordingly, the Tribunal finds there is not a real chance that he will suffer serious harm by agents of harm representing Vietnamese authorities or from anyone else, now or in the reasonably foreseeable future on the basis of the visits of Vietnamese officials to [Detention Centre].

Profile in the Australian Vietnamese Community

1. The applicant also raised his involvement in the Vietnamese community since 2014.  The Tribunal notes that the applicant has provided no corroborating evidence or witnesses in support of this claim, which might be expected if such a claim was genuinely held and well-founded. 

Findings

1. The Tribunal has considered all of the integers of the applicant’s claims for protection separately and cumulatively and finds that the applicant’s claims and evidence are not credible and that he does not subjectively hold a well-founded fear of persecution in Vietnam on account of conflict with a mining company in his home town, antigovernment protests, illegal departure, the data breach by the Department or as a result of Vietnamese officials’ visits to [Detention Centre] or any involvement in the Vietnamese community in Western Australia since 2014, or as a returnee failed asylum seeker or for any other reason from the Vietnamese State, agents representing the Vietnamese State, property developers, sand miners or anyone else now or in the reasonably foreseeable future, if he returns to Vietnam.

2. With respect to complimentary protection the Tribunal notes that the standard for having substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he would suffer significant harm is the same as that required to be satisfied that the requirements of refugee protection being a real chance of serious harm. 

3. Based on the findings with respect to those claims discussed above, the Tribunal finds that the applicant does not face a real risk of significant harm from any person or for any reason in Vietnam now or in the reasonably foreseeable future.  Similarly, there is no real risk of significant harm to the applicant on his return as a failed asylum seeker.

4. Accordingly, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm. 

Conclusions. 

1. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore, the applicant does not satisfy the criterion at s.36(2)(a) of the Act.

2. Having concluded the applicant does not meet the refugee criterion in s.36(2)(a) of the Act the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).  There is no suggestion that the applicant satisfies s.36(2) on the basis that he is a member of the same family unit as a person who satisfies either of those criteria and who holds a protection visa.  Therefore, the applicant does not satisfy the criterion in s.36(2) of the Act.

Decision. 

1. TheTribunal affirms the decision not to grant the application a protection visa.

END OF ORAL DECISION   [12.03 PM]