1620690 (Refugee)

1620690 (Refugee) [2019] AATA 6336 (3 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620690
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Paul Noonan
DATE:3 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 October 2019 at 1:19pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – economic conditions – new relationship and marriage in Australia – religion – Catholic – previous attempt to leave Vietnam unlawfully, resulting in imprisonment –credibility – delay in applying for protection – long period as unlawful non-resident – claims of fear of harm raised late – no evidence of wife’s citizenship provided – referral for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 417, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
MIAC v SZQRB [2013] FCAFC 33
Ram v MIEA (1995) 57 FCR 565
SZRSN v Minister for Immigration [2013] FMCA 78
SZRSN v MIAC [2013] FCA 751
SZTAL v MIBP [2015] FCCA 64
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 on 21 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age] year old man from Vietnam. He arrived in Australia as the holder of a [Visitor] visa. His visa expired [in] August 2008 and the applicant became unlawful. He was eventually located [in] May 2016 and placed into detention. The applicant then applied for a Protection (Class XA) (Subclass 866) visa on 6 June 2016. The applicant was represented in this matter by [Ms A] of [Immigration Lawyers], however his representation ceased prior to the hearing held by the Tribunal into this matter on 13 August 2019. The applicant attended the hearing in person and was accompanied by his wife. The Tribunal was assisted in the conduct of the hearing by an interpreter in the English and Vietnamese languages.
For the reasons that follow, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
Section 5J(2)–(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:        For effective protection measures, see section 5LA.
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)      conceal an innate or immutable characteristic of the person; or
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)       conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)      conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)      a threat to the person’s life or liberty;
(b)      significant physical harassment of the person;
(c)      significant physical ill‑treatment of the person;
(d)      significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A). 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.
Section 36(2B) of the Act sets out 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.
Country of reference
On the basis of the applicant’s passport the Tribunal is satisfied that the applicant is a national of Vietnam. Accordingly, the Tribunal finds that Vietnam is the country of reference with respect to the refugee criterion and the receiving country in respect to the complementary protection criterion.
CLAIMS AND EVIDENCE
Applicant’s oral and written evidence
The Tribunal has before it the Department file ([number]), which includes a copy of the applicant’s protection visa application, the delegate’s reasons for decision and an audio recording of the applicant’s interview with the delegate. The Tribunal has also reviewed the notes of interview undertaken by the Department on 15 May 2016 and 14 June 2016 upon the applicant’s detention. The Tribunal noted that when asked why he left Vietnam he stated that life in Vietnam was really hard and life in Australia was heaven so he did not want to go back. He did not provide any reasons why he could not return to Vietnam and stated he wished to stay in Australia to look after his girlfriend.
The Tribunal has also had regard to an interview conducted by the Tribunal (differently constituted) on 26 July 2016 in respect to an appeal against a decision of the Department to refuse the applicant a Bridging Visa E (Class WE).
In his application for a protection visa, the applicant lists his nationality as Vietnamese and his religion as Catholic. The applicant did not directly respond to questions asked of him in the claim forms. Rather, he referred to his accompanying written statement, dated 31 May 2016. In this statement the applicant set out that he was born in [a] village in Vietnam in [year]. His father is retired and his mother passed away about three years ago. He has two [siblings] residing in Vietnam and two who reside in Australia. After leaving school in Grade [number] he became [an occupation]. He married in 2007. His wife and he decided to visit his [siblings] in Australia.
After arriving in Australia the applicant stated that he felt happy. Life was difficult in Vietnam with a lot of financial struggle. In Australia all of that lifted for the first time. However, two months after they arrived, his wife left him. He could not face returning to Vietnam without his wife as he was afraid of feeling alone. He then became unlawful. He wanted to make his deceased mother proud by leading a good life in Australia. He subsequently met his girlfriend working [in a location]. She had young children whom he liked. He cared for her and the children.
The applicant noted that he was detained for being unlawful [in] May 2016. He found this very distressing. He can barely remember anything about it but did tell the authorities he would return to Vietnam. He found detention very depressing. He worries that if he is returned to Vietnam he will not be able to care for his girlfriend and her children. The future for him in Vietnam is very uncertain and hard. He feels very anxious about this. He has been Catholic since he was born. He will leave Australia in preference to staying here unlawfully. He never wants to be unlawful again. He wants a chance to prove himself and look after his girlfriend and her children.
In subsequent correspondence directed to the Department, dated 11 November 2016, the applicant’s representative set out that they are instructed that the applicant fears harm on return to Vietnam on account of his Catholic religion, having experienced restrictions and impediments of his religious freedom prior to departing Vietnam. Further, he attempted to escape Vietnam in the late 1980s and was arrested by the [Country 1 people] and returned to Vietnam. In addition, he fears psychological harm if he is forced to separate from his girlfriend and her children.
At the commencement of the hearing, the applicant stated that he had now married his partner. The Tribunal set out to the applicant that, in his original statement, dated 31 May 2016, he had not set out any fear of harm in respect to returning to Vietnam. The Tribunal also set out to the applicant that the delegate had decided his claims were not credible as he had not mentioned any fear of harm in his initial contacts upon being detained or in his statement of claim. Further, country information does not indicate persecution of Catholics or those returning to Vietnam after having attempted to flee Vietnam in the past. In addition, the delegate had found that the applicant’s long history of unlawfulness indicates he does not have a genuine fear of harm and in fact his immigration history suggests his long delayed claim for protection has been undertaken purely to achieve a migration outcome.
The Tribunal confirmed with the applicant that his grounds for fearing persecution are on the basis of religion, his previous attempt to flee Vietnam and fear of psychological harm due to separation from his wife. Later, during the Tribunal hearing, the applicant also introduced a new claim that he feared returning to Vietnam as a failed asylum seeker who had made claims against the government.
The Tribunal set out to the applicant that he had previously participated in an interview in respect to his bridging visa application with the Tribunal on 26 July 2016 and that it had had regard to that interview. The Tribunal noted that he was asked why he had not gone back to Vietnam and that he answered his life was upside down and he had decided to stay in Australia as he wanted to look for his ex-wife. He had agreed he worked illegally but needed the money. Further, he was in contact with his Dad in Vietnam, who told him to stay in Australia and look for his wife. The applicant agreed this was all correct. The Tribunal set out that it was put to him that he had stayed in Australia to pursue economic opportunities and to stay with his current partner, to which he had replied he was asking for another opportunity to stay in Australia.
The Tribunal also notes, and put to the applicant that, in initial interviews with the Department upon his detention, he made no mention of any fear of harm in respect to returning to Vietnam and had only mentioned a desire to stay in Australia to look after his girlfriend.
The Tribunal put to the applicant that this information in respect to these past interviews is relevant as it may cause the Tribunal to doubt he has a genuine well-founded fear of harm on the basis that his claims lack credibility. The Tribunal set out, as required under s.424AA of the Act, that if it relies upon this information in making its decision it may not accept that the applicant has a well-founded fear of persecution or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Vietnam. Further, this would be part of the reason why the Tribunal would affirm the decision under review. The Tribunal invited the applicant to respond verbally in respect to this information and noted he can also respond in writing after the hearing.
The applicant verbally responded that in 1990 he tried to escape Vietnam. He was sent back to Vietnam and since then his life was changed completely. He believes he will be gaoled if he is returned to Vietnam. He was gaoled in 2012 for one year for trying to leave Vietnam. His Dad demonstrated against his incarceration and he was also charged with disturbing the peace and sentenced to three years’ gaol. Since then the government always keeps an eye on his family. The Tribunal asked him to clarify these dates and he stated he was in prison in 1992 and not in 2012.
In respect to not mentioning his fears of persecution when he applied for protection he stated that he did not want to say anything as he did not have hope that the Australian government would allow him to stay. He feared the information would be released and if he went back to Vietnam this would be used against him. He feared he would be charged with subverting the government and would be harmed as a failed asylum seeker. The Tribunal asked the applicant on what basis he formed a view that information he gave in his protection claim process would be passed on to the Vietnamese authorities. The applicant stated that when he was detained he did not think he would be allowed to stay in Australia. It was only when his wife bailed him out that he thought he may be allowed to stay and decided to release information about his reasons for fearing harm.
The Tribunal put to the applicant that he arrived in Australia in 2008 and he then spent many years in Australia unlawfully. Further, he made no mention of fearing harm in interviews conducted with the Department upon his initial detention or in his claim and it was only when he faced imminent deportation that he articulated claims to fear harm in Vietnam. The Tribunal put to the applicant that his immigration history may indicate that he only seeks a migration outcome and does not have a genuine fear of harm. The Tribunal invited the applicant to respond. The applicant stated that he did not understand that he needed to articulate his fear of harm in a claim.
The Tribunal put to the applicant that it may not find it credible that, if he held a genuine fear of harm, he would not have looked at his options for protection for such a long period of time when he was in fact an unlawful citizen. The applicant stated that he knew he was illegal but tried to exhaust all means to help him with immigration, and he was just focused on lengthening his time in Australia. This was because of the problem with his ex-wife but also he began to fear that he would be goaled due to his involvement with the Church as he had been involved in organising celebrations such as Christmas and as such he could easily be persecuted. He noted that he was arrested by the government after being released from prison in 1992 for helping organise such events for the church.
The Tribunal put to the applicant that he had not previously mentioned he had been arrested for his religious activities. The Tribunal informed the applicant it may view the late raising of this evidence only at the Tribunal hearing adversely. The applicant reiterated that he had not done so as he thought he was going to be sent back to Vietnam.
Country information - religion
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal put to the applicant country information relevant to the applicant’s claims that it had reference to during the hearing.
The Tribunal noted the United States Commission on International Religious Freedom (USCIRF), Annual Report 2019 - Vietnam, 29 April 2019. The Vietnamese government has officially recognised 39 religious organisations and granted operating licences to four other religious organisations, representing, in total, more than 25 million followers affiliated with 16 different religions—including Buddhism, Catholicism, Protestantism, Hoa Hao and Cao Dai.[1] The Tribunal put to the applicant that this report does not set out any pattern indicating systematic persecution of members of the Catholic faith by the authorities. It did note land grabbing of church property and action against Catholic priests who engage in protests and activities deemed against the government and occasional bans on informal religious activity and prayer.
[1] United States Commission on International Religious Freedom (USCIRF), Annual Report 2019 - Vietnam, 29 April 2019, p. 133.
The Tribunal set out that DFAT reports that:
Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.[2]
…
DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion (see Political Activists for further information). [3]
[2] Department of Foreign Affairs and Trade, Country Information Report, 21 June 2017, p12.
[3] Department of Foreign Affairs and Trade, Country Information Report, 21 June 2017, p13.

The Tribunal put to the applicant that this country information may indicate that he will not be subject to persecution for reason of his religion and invited him to comment. The applicant stated that the local government will persecute him as he is involved in church activities such as teaching young ones the scriptures, and they view this as an illegal gathering to spread propaganda against the government.
Country information – past attempt to leave Vietnam
The Tribunal put to the applicant that, in respect to his claim to fear harm due to trying to escape Vietnam in 1990, country information sets out that Vietnam recognises the principle of double jeopardy and that asylum seekers are not mistreated upon their return.[4] The Tribunal questioned on what basis, some 30 years after this event, the applicant believed he would be of interest to the authorities or have any profile in respect to this claim. Further, this country information may indicate there is no real chance he will suffer serious harm for this reason upon his return to Vietnam. The applicant agreed he would not be at risk of being persecuted for reason of his past attempt to escape Vietnam. He stated he feared persecution because of his claims and information that he has disclosed in Australia.
Does the applicant have a well-founded fear of persecution should he return to Vietnam?
Fear of persecution - stress and mental anguish as a result of the applicant’s separation from his wife and her children and past financial struggles in Vietnam
[4] Department of Foreign Affairs and Trade, Country Information Report, 21 June 2017, p25.
The Tribunal set out to the applicant that these fears of harm may not be for the reason of persecution in Vietnam because there does not appear to be any element of intention. The Tribunal notes that it is well established that ‘persecution’ within the meaning of the Convention involves a discriminatory element. The reference to ‘discriminatory conduct’ in s.5J(4)(c) clearly reflects and incorporates this aspect of the judicially developed law. In Applicant A v MIEA, Brennan CJ stated:
the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (“race, religion, nationality, membership of a particular social group or political opinion”) mentioned in Art 1(A)(2).[5]
[5] (1997) 190 CLR 225 at 233.
The Tribunal invited the applicant to respond or make a submission in respect to this point. The applicant gave what the Tribunal considers to be a vague response reiterating that he had been looking for his former wife prior to meeting his new wife in 2012, who had subsequently sponsored him out of detention in 2016.
As set out earlier in these reasons, s.5J(4)(c) of the Act requires that the persecution must involve systematic and discriminatory conduct. In Applicant A v MIEA, Brennan CJ stated:
the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (“race, religion, nationality, membership of a particular social group or political opinion”) mentioned in Art 1(A)(2).[6]
[6] (1997) 190 CLR 225 at 233.
In the same case, McHugh J said:
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group…
Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.[7]
[7] Applicant A v MIEA (1997) 190 CLR 225 at 233 at 258. See also MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [73].
Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In the well-known passage in Ram v MIEA, cited with approval by the High Court and Federal Court on a number of occasions, Burchett J said:
Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.[8]
[8] (1995) 57 FCR 565 at 568.
The Tribunal finds that the feared serious harm is not as a result of an intentional act by another person. Rather the feared serious harm may eventuate as a result of the applicant’s own mental health deterioration due to his personal circumstances or for reason of the general economic conditions in Vietnam. After considering the evidence in respect to this claim, the Tribunal finds that the applicant does not have a well-founded fear of persecution in respect to these claims.
Fear of persecution due to religion
The Tribunal considers that the country information clearly reflects that followers of the applicant’s Catholic religion are able to freely practise their faith in Vietnam and only risk persecution when their activities are deemed political in nature. The Tribunal notes that the applicant has not claimed political activities associated with his religion and activities he undertook were reflective of normal faith based activities.
The Tribunal accepts the applicant’s claim that his teaching young children scripture was viewed as an illegal gathering to spread propaganda by local authorities. However, by his own evidence he was last in trouble with the authorities in respect to his religious organising activities in or around 1992. Given the long passage of time since then, the Tribunal places little weight on this evidence of past harm in respect to its consideration of the real chance of serious harm now or in the reasonably foreseeable future. The Tribunal places much greater weight on the most recent country information in respect to the authorities’ attitude towards the applicant’s Catholic faith, as set out earlier in these reasons.
Accordingly, given the applicant has not engaged in political activities and does not have a political profile associated with his faith, the Tribunal did not accept that he would be targeted by local government for harm for practising his faith should he return to Vietnam.
Having considered the evidence on this issue both individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on his return to Vietnam for reason of his religion either now or in the reasonably foreseeable future.
Fear of persecution – past attempt to escape Vietnam and claims made in Australia related to returning to Vietnam as a failed asylum seeker
During the hearing the applicant agreed, after considering the country information put to him, that he would not be at risk of persecution due to his past attempt in 1990 to escape Vietnam. The Tribunal finds this to be the case on the basis of the relevant country information set out earlier in these reasons.
The Tribunal does not accept the applicant’s new claim, that he fears persecution because of his claims against the Vietnamese government made in Australia, in the context of his protection claims, to have any basis. This is because, after considering the evidence before it, the Tribunal does not accept that the applicant has any form of profile with the Vietnamese government and the applicant gave no credible reasons as to how the Vietnamese authorities would become aware of his claims or why his claims would be of any interest to the Vietnamese authorities. Having considered the evidence on this issue both individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on his return to Vietnam for reason of his past attempt to flee Vietnam or for reason of his return to Vietnam as a failed asylum seeker, either now or in the reasonably foreseeable future.
Delay in making a claim for protection
In addition to the above concerns the Tribunal also has credibility concerns relating to the lengthy delay in the applicant making a protection claim and his migration history as set out earlier in these reasons. When asked about the delay in applying for protection the applicant stated he was focused on lengthening his stay in Australia. The Tribunal did not accept this explanation as being reasonably plausible as he was unlawful for many years with the threat of being found at any stage. If the applicant held a well-founded fear of serious harm the Tribunal would expect he would have pursued a protection claim much earlier than he did and prior to him becoming unlawful. After considering the applicant’s migration history pertaining to this matter the Tribunal finds that the applicant’s long history of unlawfulness strongly suggests that he did not have a well-founded fear of persecution for the reasons claimed. Rather that he made the Protection visa application only when his removal from Australia for being unlawful was imminent and as a means of achieving a migration outcome, which as stated is to lengthen his stay in Australia for as long as possible.
Conclusion
In summary, considering the totality of the evidence before it, both individually and cumulatively the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on his return to Vietnam for any reason articulated by the applicant to the Tribunal either now or in the reasonably foreseeable future.
Is there a real risk that the applicant will suffer significant harm on his return to Vietnam?
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), that being whether, on the evidence, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal put to the applicant that it accepts there are there are strong compassionate reasons for the applicant to remain in Australia with his partner. However, the fact that he has a partner in Australia will not bring him within the legislative provisions relating to complementary protection. It has been held that the relevant act or omission said to constitute significant harm cannot be the act of removal itself.[9]
[9] See SZRSN v Minister for Immigration & Anor [2013] FMCA 78.
For the reasons that are set out above, the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Vietnam for reason of his religion or his past attempt to escape Vietnam and claims made in Australia related to returning Vietnam as a failed asylum seeker.
In respect to his claim that he will suffer mental anguish in respect to his separation from his wife and her children, the Tribunal notes that the types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A). Under this provision, 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. The definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ refer to ‘an act or omission’. This means that only an action or a failure to act would fall within the definition, which may be distinguished from a consequence of an act or an omission.[10]
[10] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [47]; SZTAL v MIBP [2015] FCCA 64 (Judge Driver, 24 February 2015) at [41] (undisturbed on appeal in SZTAL v MIBP (2016) 243 FCR 556 and in SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017)).
In respect to the applicant’s claim, the Tribunal considers there is no identifiable action or failure to act that is intended to cause significant harm to the applicant. Accordingly the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Vietnam for reason of his separation from his wife and her children. Similarly, in respect to the applicant’s claim that life was difficult in the past in Vietnam from an economic perspective, there is no identifiable action or failure to act that is intended to cause significant harm to the applicant discernible within this claim.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Consideration of referral for Ministerial Intervention
The Tribunal considered whether it should recommend Ministerial Intervention pursuant to s.417 of the Act. The Tribunal has taken note of PAM3: Ministerial powers: Minister’s guidelines on ministerial powers (s351, s417 and s.501J) in determining whether to make a recommendation. Those guidelines include recommendations based on unique, exceptional circumstances including whether there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
In addition, these guidelines highlight information on other relevant issues including:
·The level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
The Tribunal has considered the guidelines and notes that the applicant did not forward evidence of his marriage or of his partner’s Australian citizenship to the Tribunal after the hearing despite being verbally requested to do so by the Tribunal at the conclusion of the hearing. The Tribunal informed the applicant at hearing that it would consider the Ministerial Guidelines upon receipt of this evidence. As this evidence was not forthcoming, the Tribunal places significant weight on the lengthy period the applicant has spent unlawfully in Australia. After weighing these considerations the Tribunal did not consider this is a matter that should be recommended for consideration for Ministerial Intervention pursuant to s.417 of the Act. The Tribunal notes that the applicant can still make a request directly to the Minister.
OVERALL CONCLUSION
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)    if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)    in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6336

3 October 2019

Key Legal Topics

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Immigration

Statutory Interpretation

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Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction