1617817 (Refugee)

[2018] AATA 1740

1617817 (Refugee) [2018] AATA 1740 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617817

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Christopher Smolicz

DATE:19 April 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 19 April 2018 at 3:44pm

CATCHWORDS
Refugee – Protection Visa – Vietnam – Non-convention reason – Fear of harm from former partner’s family – Feared harm not for convention reason – Remote chance of significant harm – Witness credibility - Claims vague and lacking in detail

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 189, 417, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] HCATrans 323

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 17 November 2014 and the delegate refused to grant the visa on 13 October 2016.

3. The applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

6. 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.

   Refugee criterion

7. 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).

8. 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.

9. 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.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, 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. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. 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.

12. Further, 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.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – 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.

14. Fourth, 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.

15. 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.

16. 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

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

19. 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: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue advanced by the applicant in his protection visa application is whether he meets the refugee criteria or comes within Australia’s complementary protection obligations because he fears threats from his wife’s family in Vietnam.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

23. [Mr A] first came to Australia on a [student] visa on 11 August 2009. The visa was valid until [September] 2013.

24. He travelled to Australia on a passport issued by the Socialist Republic of Vietnam. Since arriving in Australia [Mr A] has returned to Vietnam on the following occasions:

    ·     [May] 2011 and returned to Australia [in] June 2011

    ·     [August] 2012 and returned to Australia [later in] August 2012

    ·     [January] 2013 and returned to Australia [in] February 2013.

25. Since arriving in Australia [Mr A] has completed an English language course and a [particular course].

26. On 4 September 2013 he applied for a second student visa. His application was refused by the Department. [Mr A] applied to the Migration Review Tribunal to review the decision. On 16 January 2014 the Tribunal determined that it could not consider the application as the application did not meet the timeframes for review.

27. [Mr A]’s bridging visa ceased [in] February 2014 and he became an unlawful non-citizen [the day after]. [Mr A] was contacted by Departmental officers on 16 April 2014 and 2 May 2014 but he did not respond.

28. On 27 May 2014 a ‘rectify your status letter’ was sent to him via email and post. He did not depart Australia or contact the Department of Immigration to rectify his visa status.

29. [Mr A] was located at his [address] [in] November 2014 and was detained under section189 of the Act. On 17 November 2014 he lodged a protection visa application which is the subject of the current application. On 2 December 2014 he was granted a bridging visa and released from Immigration detention.[1]

    Summary of substantive claims

    [1] See Migration Review Tribunal Decision Record dated 1 December 2014, case number 1419005.

30. [Mr A] provided the following claims in a statement dated 14 November 2014 in support of his application.

31. He travelled to Australia to study. His visa was ‘automatically cancelled’ and he was placed in Immigration detention. He fears harm in Vietnam from his wife’s family.

32. He married [a particular individual] [in] May 2009. He was able to save money in Vietnam to enable him to study in Australia. His goal was to graduate in Australia so that he could return to Vietnam and secure better employment and a better future.

33. In about 2011 his wife became pregnant. The child was stillborn and his wife became mentally distressed and started gambling at the casino. She depleted their savings and he could no longer afford to pay his course fees in Australia.

34. He and his wife commenced to undertake part-time work to pay for his course fees. His wife subsequently became pregnant with their second child on [a particular date].

35. He was behind in his fee payments and had to borrow money from friends. He managed to study and work part time but life became more difficult when his child became sick due to malnutrition, he states. It was decided that his wife and child should go back to Vietnam to stay with her parents. He would stay in Australia and continue with his studies.

36. By the end of 2012 he borrowed some money from his half-brother in Australia to visit his wife and child in Vietnam. He was reunited with his wife and the child. Not long after, his wife became pregnant to their third child who was born on [a particular date].

37. He claims that since then his wife’s family have become angry at him. They accuse him of neglecting his wife and children and stopped him from seeing them. He claims to have received direct threats from the wife’s parents and family in Vietnam. He claims they have threatened to kill him if he comes near his wife and children. His wife has contacted him and demanded money for child support. He has tried to work and find money to support his wife and children in Vietnam and this has left him with no money to pay his course fees in Australia. As a consequence his enrolment has been cancelled.

38. He has no money and no job and is unable to support his wife and child in Vietnam.

39. He did not mean to overstay his visa or do harm to anyone. He did not intend to hide from the Department and continued to stay at the same address that he had reported to the Department. He claims the authorities in Vietnam will not protect him.

    Tribunal hearing

40. [Mr A] said his parents separated many years before he travelled to Australia. His mother remarried and continues to live in Vietnam. His father and [siblings] resided in Australia. He has a [sibling] who has remained in Vietnam.

41. [Mr A] said he now has a partner in Australia who he wants to marry. He commenced his relationship in about 2015. He is in the process of applying for a divorce from his wife.

42. He travelled to Vietnam with his wife and child in 2013 to provide them with support. He decided to return to Australia so that he could continue with his studies and because he was having problems with his relationship. His wife and children have not returned to Australia.

43. He has worked in Australia as [various occupations]. His current visa does not permit him to work in Australia.

44. The applicant said that his father could not come to the hearing because he lost his driver’s licence and his siblings were very busy.

45. The Tribunal asked the applicant why he applied for the protection visa in November 2014. The applicant said that he had a lot of family issues, he did not complete his studies and he was confused at the time. His first child passed away, his wife was gambling and they had to work part time. He was arguing with his wife at the time. His wife took the children to Vietnam because of financial hardship and because of their arguments. It was his decision to return so that he could continue with his studies.

46. The Tribunal notes that when he completed the protection visa application he declared (question 16) that he was still married and did not say he was divorced or separated. The applicant said at the time he was still hopeful that they could get back together. He now has a new partner and has moved on with his life and wants to get a divorce and apply for a partner visa.

47. The Tribunal questioned the applicant about how his marriage breakdown was relevant to his fear of harm in Vietnam. The applicant said he has been threatened by his wife’s family. He said that people in Vietnam can hire thugs to cause trouble. If he approaches his children there will be trouble.

48. The Tribunal noted that he is able to obtain family law advice in Vietnam, seek a divorce and enter into a custody agreement so that he could have access to his children. The applicant said the family laws in Vietnam favour women and would be difficult for him.

49. The Tribunal notes that the marriage and family law of Vietnam allows divorce by mutual consent, or at the request of one party.[2].

    Article 89 of the Marriage and Family Law leaves the courts with a substantial degree of discretion as to what constitutes acceptable grounds for divorce:

    Article 89. Bases for permitting a divorce

    1. The Court considers the divorce application, if deeming that the situation is serious, the couple can no longer live together and the marriage purposes cannot be achieved, the Court shall decide to permit the divorce.

    2. Where the spouse of the person who has been declared missing by the Court applies for a divorce, the Court shall permit such divorce.[3]

    Article 87 of the Marriage and Family Law indicates that courts handle divorce applications according to civil procedure legislation,[4] and Articles 27 and 28 of the civil procedure code of 2005 state that annulment and divorce fall within the courts’ jurisdiction.[5]

    [2] Walsh, T, ‘The Law of the Family in Vietnam: Assessing the Marriage and Family Law of Vietnam’, California Western International Law Journal, Vol.42, 2011, pp.97 and 100, Index to Legal Periodicals & Books Full Text database, p110

    [3] The Marriage and Family Law of the Socialist Republic of Vietnam 2000 (Vietnam), Law No.22/2000/QH10,art 89, promulgated 9 June 2000 (effective 1 January 2001), Socialist Republic of Vietnam Government Web Portal <

    [4] The Marriage and Family Law of the Socialist Republic of Vietnam 2000 (Vietnam), Law No.22/2000/QH10,art 87, promulgated 9 June 2000 (effective 1 January 2001), Socialist Republic of Vietnam Government Web Portal <

    [5] Article 35 of the code covers the territorial jurisdiction of courts in relation to divorce cases, and Article 36 covers the jurisdiction of courts in relation to child access following divorce cases.  Articles 35 and 36 were amended by the Law Amending and Supplementing a Number of Articles of the Civil Procedure Code in 2011. See Civil Procedure Code (Vietnam), No.24/2004/QHII of 15 June 2004, art 27-8, 36-7, National Office of Intellectual Property Vietnam < Law Amending and Supplementing a Number of Articles of the Civil Procedure Code (Vietnam), No.65/2011/QH12, art 10, 11, Subsections h-j, passed 29 March 2011, effective 1 January 2012, Ministry of Justice <

50. The Tribunal asked the applicant why he applied for the protection visa when he was in immigration detention and not earlier. The applicant said he was confused.

51. The Tribunal explained to the applicant that it has to assess his claims looking into the reasonably foreseeable future.  The Tribunal notes that his wife has been living in Vietnam since 2013 and he lodged the protection application four years ago. The Tribunal notes that he had moved on with his life. He was in a new relationship and was seeking a divorce and wants to get married and has the option to apply for a partner visa.

52. The applicant said he had problems with his wife’s family in Vietnam. The applicant was unable to provide further evidence about the problems with his wife and her family. The Tribunal told the applicant it finds his evidence about the threats vague and lacking in detail. For example, it is unclear when he was last threatened, by who, and what was said.

53. The Tribunal noted that if he was attacked by thugs in Vietnam he could report the matter to the police. The applicant said that the police were ineffective in Vietnam. He said that when his family business had issues with thugs they called the police and it took them between 30 minutes to one hour before they attended.

1. The Tribunal referred the applicant to DFAT’s country information report and noted that although the police in Vietnam may be corrupt and poorly trained they are generally effective at maintaining public order.[6] The Tribunal asked the applicant if he has any problems with the police in Vietnam. The applicant said that he had never been arrested or detained and did not have any problems.

   [6] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017 at [5.4]

2. The Tribunal referred the applicant to his evidence and noted his claims related to a personal family dispute and were not for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion.

3. The applicant’s migration agent acknowledged that the applicant faces difficulties with the current protection visa application. The agent said that he discussed the options available to the applicant when he was in detention. He said the applicant was stressed and confused at the time and had just begun the new relationship. The agent confirmed that the applicant has now been in a relationship with his partner for three years, was seeking a divorce and would need to overcome ‘Schedule 3 criteria’ if he applied for a partner visa in Australia.[7]

   [7] Onshore applicants (that is, applicants for Subclass 820/801 visas) who do not hold a substantive visa at the time of application must satisfy certain Schedule 3 criteria (which relate to the period over which the applicant had not held a substantive visa prior to application). Where an applicant does not meet certain Schedule 3 criteria, the Minister may approve the visa where there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

4. The agent said that he would be seeking Ministerial intervention. He asked the Tribunal to support the application.

   Findings

5. The Tribunal finds that the applicant was able to obtain a validly issued Vietnamese passport and legally travel to Australia as the holder of a student visa. The Tribunal finds that the applicant is a national of Vietnam and has assessed his claims against Vietnam as the receiving country.

6. The Tribunal accepts the applicant married in Vietnam and arrived in Australia with his wife in August 2009. The Tribunal accepts the applicant experienced marital problems in Australia. The problems commenced after the stillbirth of their first child and associated mental distress and gambling problems experienced by his wife.  The Tribunal finds that the applicant’s wife returned to Vietnam in January 2013 and has not returned to Australia. She currently lives with their two children in Vietnam. The Tribunal accepts that this was a difficult period for the applicant both emotionally and financially.

7. The Tribunal accepts that the applicant’s wife may be resentful and angered by the fact that he has chosen not to return to Vietnam and has provided limited financial support for his children. As discussed with the applicant at the hearing, it is not uncommon for couples to express feelings of anger and make threats when relationships breakdown.

8. The Tribunal has had regard to the applicant’s claims and finds that his fear of harm in Vietnam relates to a personal relationship breakdown. The Tribunal finds that the applicant has not claimed to fear harm in Vietnam because of his race, religion, nationality, membership of a particular social group or political opinion. There is no evidence before the Tribunal to suggest that the applicant will be targeted on his return to Vietnam for one of the Convention reasons. The Tribunal also finds the applicant has not had any problems with the authorities in Vietnam. There is no evidence that the authorities in Vietnam would withhold protection for any Convention reason.

9. The Tribunal does not accept that there is a real chance or real risk the applicant’s wife or her family will cause him serious harm or significant harm if he returns to Vietnam. The Tribunal found the applicant’s evidence about the threats he fears vague and lacking in detail. The Tribunal finds the applicant’s evidence that his wife will hire thugs to kill him in Vietnam speculative.

10. As discussed with the applicant at the hearing his wife departed Australia over five years ago. The applicant has the option of engaging a family lawyer in Vietnam to assist him to negotiate child custody arrangements with his wife. The applicant has now moved on with his life and is in a new relationship and is applying for a divorce and intends to apply for a partner visa in Australia.

11. Having considered the applicant’s evidence the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Vietnam in the reasonably foreseeable future. His fear of persecution is not well founded. 

12. 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 s.36(2)(a).

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

14. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.

15. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[8] It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person for reasons of his actual or imputed political opinion as a necessary and foreseeable consequence of his being removed from Australia to Vietnam.

    [8] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323).

16. For the reason given above the Tribunal is also not satisfied that are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk he will suffer significant harm.

17. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Ministerial intervention

18. During the course of the hearing, the applicant’s agent requested that the Tribunal refer this case to the Minister for Ministerial intervention on the basis of the applicant’s relationship with an Australian citizen and the issues associated with ‘Schedule 3’ criteria.

19. The Tribunal notes that the Minister of Immigration and Border Protection – Home Affairs, as it is called now – has an entirely discretionary power pursuant to s.417 of the Act to intervene in cases to grant a visa where the outcome of the review application has been unsuccessful. This is often referred to as a ministerial intervention.

20. This section gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases in which it is considered that it would be inappropriate for the Minister to consider intervening:

21. The Tribunal finds that the applicant may have other visa pathways to enable him to remain in Australia. In the circumstances, having considered the submissions and the Department’s guidelines, the Tribunal declines to refer the matter to the Minister to intervene pursuant to s.417 of the Act. It remains open to the applicant and his agent to make such a request for Ministerial intervention directly to the Minister themselves if they believe that the applicant’s case meets the Ministerial intervention guidelines or otherwise raises strong compassionate or compelling circumstances.

22. 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 set out in s.36(2)(a).

23. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), 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).

24. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

    DECISION

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

    Christopher Smolicz
    Member