1706563 (Refugee)

1706563 (Refugee) [2020] AATA 708 (17 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706563
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Sheridan Lee
DATE:17 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2020 at 1:57pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – anti-government statements made at wedding while visiting Vietnam – required to present to local government people’s committee – returned to Australia immediately – social media activity – marriage to Australian citizen, birth of Australian citizen child and death of husband – no funds to pay for partner visa application – delay in applying for protection – applied after student visa expired and period as unlawful non-citizen – mental health – child not an applicant for protection, so best interests of the child does not apply – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
AZAEH v MIBP [2015] FCA 414
MIEA v Guo (1997) 191 CLR 559
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 7 March 2017 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 woman from Vietnam. She applied for the visa on 19 January 2016 on the basis that she would be arrested and potentially tortured on return to Vietnam for making anti-government statements. The delegate refused to grant the visa on the basis that applicant’s claims were vague and not supported by evidence.
The Tribunal viewed a copy of the applicant’s Vietnamese passport. I accept that the applicant is a citizen of the Socialist Republic of Vietnam and will assess the applicant’s claims against Vietnam as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
In her protection visa application, the applicant stated that she was born in Tra Vinh, Vietnam. She stated that she belongs to the Kinh ethnic group (the majority ethnic group in Vietnam[1]) and speaks, reads and writes English and Vietnamese. She first arrived in Australia [in] November 2009 on a [student] visa. Since her first arrival in Australia, the applicant has returned to Vietnam on two occasions, once from [January] until [February] 2012 and once from [May] until [June] 2014.
[1] Department of Foreign Affairs and Trade, Country Information Report – Vietnam, 21 June 2017, Sect. 2.6, p.6
The applicant married Australian Citizen, [Mr A], [in] December 2014 and [in] May 2015, their [son] was born in Melbourne.
On 19 January 2016, the applicant applied for protection. On her application form, the applicant outlined that her mother, father [and a number of siblings] continue to reside in Vietnam. In May 2014, the applicant returned to Vietnam to attend her sister’s wedding. The applicant alleged that she was accused of anti-government activity on the basis of comments she made at the wedding.
The form outlined that the applicant pointed out the terrible aspects of the Vietnamese Government, such as the oppression of freedom of speech, lack of democracy, prevalence of corruption and bribery and the monopoly of power by a single party. Amongst the invited guests were representatives of local government. One of those officials said the applicant was a ‘reactionary’ and had engaged in anti-government activity. That person said the applicant had to present herself to the people’s committee of the sub-district after the wedding. After the wedding, the applicant fled to Saigon and returned to Australia.
The applicant fears that if she returns to Vietnam she will be arrested. She knows other young people who have been jailed for protesting against the Vietnamese Government. The form further outlines that in Vietnam, everyone has to go to the people’s committee of the sub-district to get their resume or any other personal documents certified if they need to work or do other legal things. She would need to go to the office sooner or later.
The applicant fears the Government may torture her to provide information about an unnamed Vietnamese political party overseas as they think her behaviours were influenced by people in that party.
Finally, the form alleges that the applicant can’t move to another area of Vietnam because individuals are required to declare personal details and she can’t seek assistance from authorities because they are tied to the Government.
Application for merits review
On 30 March 2017, the applicant applied for merits review of the decision to refuse her protection visa application. She supplied the Tribunal with a copy of the delegate’s decision and reasons. No further evidence was submitted at the time of the review application.
The applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant made written submissions on the day of the hearing. The written submissions outlined that the applicant moved to Australia to study. She completed [Qualifications].
The submissions went on to outline that in May 2014, the applicant returned to Vietnam to attend her sister’s wedding. At the ceremony, the applicant was freely expressing spirited political views to a group of people. This came to the attention of a local government official who was invited to the wedding, an obligatory practice in the local community. The official accused the applicant of being a reactionary and accused her of having engaged in anti-government activity. The applicant was therefore required to present herself to the people’s committee after the wedding. In fear, she fled to Ho Chi Minh and then Australia. She has not returned to Vietnam since that time.
In June 2014, the applicant met her future husband, Mr [A], [in] Melbourne. He was an Australian citizen who originated from the same area of Vietnam as the applicant. They soon began a relationship and in August 2014 the applicant fell pregnant with the couple’s son.
The couple had a small wedding ceremony at [a venue] in Melbourne in November 2014 and the marriage was legally registered in December 2014. On [date], the applicant gave birth to her [son]. A copy of the marriage and birth certificates were supplied to the Tribunal.
The submissions alleged that the applicant became concerned about Mr [A]’s drug use during her pregnancy and as a consequence the couple experienced financial hardship. They had planned to apply for a partner visa for the applicant, however lacked the necessary funds for the application fee. On 24 September 2015, the applicant’s [student] visa expired and she became an unlawful non-citizen. On 19 January 2016 she applied for protection.
[In] 2016, Mr [A] died from [drug] toxicity. A certified copy of the death certificate was provided to the Tribunal.
In relation to [the son], the submissions contend that his care could not be facilitated by another parent in Australia following the death of his father and the delegate did not consider Australia’s international obligations, in particular: the United Nations Convention on the Rights of the Child. In addition, the delegate did not consider the challenges faced by the applicant and her child by the 1997 Decree on Household Registration and Management in Vietnam.
Finally, the submissions reiterated that the applicant fears harm on return to Vietnam on the basis of her anti-government activities and it was highlighted that ‘fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence under Article 91 of the Penal Code 1999 in Vietnam. Attached to the submissions was a personal statement from the applicant along with a range of identification documents for herself, [her son] and Mr [A]. The personal statement again set out the applicant’s claims and was consistent with her application and the formal submissions.
At the hearing, the applicant gave oral evidence that she was born and grew up in Tra Vinh. Her parents and most of her siblings remain in the area. However, one sister has moved to another province, a second sister now lives in [Country] and one brother in Australia. The applicant keeps in contact with her family regularly via text and video calls. The applicant and her family also maintain social media accounts.
The applicant’s son was [age] at the time of the hearing. He is her only child and the only child of her late husband. [The son] is an Australian citizen by birth. A copy of his Australian Citizenship certificate was supplied to the Tribunal. The applicant was unsure if [her son] is also a Vietnamese citizen and has never taken steps to obtain citizenship on his behalf.
When asked about the Vietnamese Government, the applicant expressed the view that within the communist regime people have no voice – you can’t express what you think. The country is not independent and there is no freedom.
The applicant gave evidence that her fears originate from the response of a local government official to comments she made at her sister’s wedding. She explained that she was seated on a table of friends of around the same age. The applicant could recall that two of the guests were her old school [friends]. She could not recall who the other guests seated at the table were, other than that they were friends of her brother and sister and lived locally. Her friends asked about life in Australia and the applicant told them that Australia is a great country, not like Vietnam. She explained that in Australia people have freedom, access to social security and there is no corruption. She went on the say that:
·the gap between rich and poor is large in Vietnam
·the Communist Party deprives people of freedom of speech
·in Vietnam when someone graduates and looks for employment, they must prepare with money to bribe people to get a job. In Australia if you have the ability you will get the job without paying anyone.
·within the Vietnamese government, people that are relatives of those in power, even if they don’t have capabilities, they can be appointed to important positions and that is not fair.
·poor people have no school, clothing, they are hungry. Rich people and government officials have everything. Houses, cars, they can send children overseas for study.
·when she was in school, they would teach the students that the communist party love their people and protect them. But when she compares them to Australia it is not true.
Following the conversation at the table, a man from the local police approached the applicant and said he was suspicious of her because she is from overseas. The applicant gave evidence that he was suspicious that she was involved in activity against the Vietnamese Government. Perhaps she had trained overseas and came back to undermine the Vietnamese Government. The official said he wanted to speak with the applicant in private at the local government office after the wedding ceremony. The applicant could not remember the official’s name, but remembered that he had a pot belly.
The applicant was not sure if the police officer heard her comments made at the table, but noted that she was talking pretty loud.
The applicant had a feeling something wasn’t right, so she departed for Saigon and failed to attend the local government office prior to returning to Australia. The applicant confirmed that she experienced no issues at the airport with authorities when departing Vietnam.
The applicant hid the exchange with the officer from her family because she didn’t want them to be concerned. However, later when the applicant’s mother went to the local government office she said they asked about her. When I asked the applicant what the official asked her mother about, the applicant stated that the official commented that she had been overseas for a long time and asked when she was coming back.
The applicant confirmed that other than an official at the local government office asking about her, there has been no other activity to indicate that she is of interest to authorities. Nevertheless, the applicant expressed a bad feeling that they have targeted her and something bad is waiting. The applicant explained that she believes they put her name on the blacklist of people acting against the Vietnamese government.
I asked the applicant if she had ever been involved in politics. In response, she gave evidence that she has never been directly involved in any political activity. She did share some articles about the regime on her [Social media] account. She couldn’t remember the dates, however agreed to provide a copy of the posts after the hearing.
The applicant gave evidence that she is scared whenever she thinks about returning to Vietnam or sees an article about the arrest of dissidents. She is scared they might arrest or interrogate her at the local office. Sooner or later she would have to turn herself into a government office. The family book does not include her name. The applicant also expressed a fear that if she were detained in Vietnam, there would be no one to care for her son.
The arrest of Vietnamese blogger Nguyễn Ngọc Như Quỳnh, also known as Me Nam, was provided by the applicant as an example of the action of the Vietnamese Government against dissidents. The applicant also recalled that in 2011 there was a girl her age from her province that was involved in a youth Christian association who was jailed for eight years for her involvement in political activity. Some of her family were also jailed. The applicant saw an article about the girl on Facebook and heard about it on SBS Radio in Australia.
The applicant confirmed that to date her family have not experienced any issues in Vietnam. However, she expressed concern that they might be charged as accessories if she returned to Vietnam.
I asked the applicant why there was an 18 month delay between her last departure from Vietnam and her application for protection. She explained that at that time she wasn’t afraid. She was far away from that land and those people. She had study to do and there was no immediate threat. She met her late husband and thought she would remain in Australia because she had married a citizen and they had a child together.
The applicant gave evidence that she and her husband never saved the funds required to submit a partner visa application. He was a drug addict and experienced gambling problems. The applicant was pregnant and unable to work. The applicant’s late husband’s mother, father and siblings live in Melbourne and sometimes assist with money. She visits his parents every now and then. The applicant gave evidence that if forced to depart Australia she would take her son with her.
Finally, the applicant explained that she suffered from anxiety and depression as a result of her husband’s drug addiction and the resulting financial hardship. She felt frustrated and sad when he passed. She sought treatment through counselling and feels she is returning to normal. She has not been prescribed any medication.
On 27 September 2019, the Tribunal received post-hearing submissions from the applicant. The submissions contained a number of screen shots from [Social media] accounts held in the names of [the applicant] and [her son]. The profile picture of both accounts is an image of the applicant and her son. The profile pages are then followed by 15 screenshots of what appear to be posts made in relation to news articles on Vietnamese current affairs. All but one of the posts was made from the account of [her son], however due to the poor quality of the images it is not possible to determine the dates or read the text.
The submissions contend that the posts depict the applicant’s online activities over a long period of time, consistent with her claims, and would constitute a breach of multiple Vietnamese laws. The submissions again highlight that the applicant would be at risk of harm on return to Vietnam. A recent article published on SBS News, extracts from the Department of Foreign Affairs and Trade, United States Department of State and United Kingdom Home Office reports on Vietnam were supplied in support of the claims.
Attached to the post-hearing submissions was a psychological report prepared by [a psychologist], dated [September] 2019. The report outlined that the applicant had attended five appointments at the date of the report and planned to continue regular counselling, with another appointment booked for [October] 2019.

The report set out the applicant’s claims, as reported by her to [the psychologist]. [The psychologist] provided a diagnosis for the applicant in the report of Adjustment Disorder with Mixed Anxiety and Depressed Mood. The report concluded that if the applicant were to be ‘sent to Vietnam and face physical or psychological harm, this would be disastrous not only for her wellbeing but also this would also [sic] have a significant impact on the well-being of [her son]’.
On 18 December 2019, the Tribunal wrote to the applicant in relation to the screenshots provided with her submissions. The letter advised that due to the poor quality of the images, the Tribunal was unable to discern the dates, times or content of the [Social media] posts provided. The letter also noted that the majority of the posts appear to have been made from the account of the applicant’s [son]. The applicant was invited to re-submit the material in a readable format and to provide further information about the origin and purpose of the screenshots by 31 December 2019.
On 14 January 2020, the Tribunal received final submissions from the applicant. The submissions outline that the [Social media] account bearing the name of the applicant’s [age]-year-old son is utilised as her primary account. The account is private and only used for those people that the applicant trusts to share unfavourable information pertaining to the Vietnamese Government. The applicant believes that this practice lowers her risk of being detected and persecuted by the Vietnamese Government.
Attached to the submissions were screenshots of numerous posts made throughout 2019 from the [Social media] account of [her son]. The posts appear to be news articles published in Vietnamese; no translation was supplied.
Findings
I accept that the applicant is a Vietnamese woman, who is mother to an Australian child. I accept that she married Mr [A] in 2014, who was an Australian citizen and died from a [drug] overdose in 2016. I accept that the applicant suffers from Adjustment Disorder with Mixed Anxiety and Depressed Mood. I further accept that the applicant holds an unfavourable view of the Vietnamese Government and made comments to that effect at her sister’s wedding.
Other than comments made at her sister’s wedding, and some [Social media] posts, only one of which was from the [Social media] account of [the applicant], there is no evidence before the Tribunal to indicate that the applicant is a political activist. Unfortunately it is not possible to discern when this post was made or the title or content of the article shared from the account. Nevertheless, I have provided her with the benefit of the doubt, and accept that it was a news article critical of the Vietnamese Government. All other [Social media] posts provided to the Tribunal were made from the account of [her son] during 2019.
The Department of Foreign Affairs and Trade (DFAT) reports that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.
The examples of political and religious activists detained in Vietnam that were provided by the applicant involved high-profile activists with published articles or official ties to political or religious organisations. Vietnam’s estimated population in 2018 was 97 million. In World Report 2020: Vietnam, Human Rights Watch reported that in 2019, 25 people were convicted in politically motivated cases. On 13 May 2019, Amnesty International estimated that the Vietnamese Government held 128 ‘prisoners of conscience’. While I accept that arrests and harassment occurs, it occurs to a very small minority of the population, with the risk escalating based on the activities and profile of the individual.[2]
[2] E.g. in World Report 2020: Vietnam, Human Rights Watch reported that in 2019, 25 people were convicted in politically motivated cases; on 13 May 2019, Amnesty International estimated that the Vietnamese Government held 128 ‘prisoners of conscience’.
By her own evidence, the applicant harbours anti-government sentiment, and that is all. She was not politically active, did not participated in demonstrations and is not a member of any political associations. I accept that the applicant was requested to attend the local government office in May 2014 and that on one occasion her mother was asked about her whereabouts. I note that the applicant was not arrested or detained and there is no evidence to suggest that a formal report was made. Other than these two enquiries, neither the applicant nor her family have experienced any harassment from authorities. The applicant experienced no difficulty departing Vietnam after the discussion with the police officer at her sister’s wedding.
As discussed with the applicant at the hearing, while I accept that political activists are at risk of harm, based on her account of events I do not accept that she would face a real chance of persecution from Vietnamese authorities. A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[3] The applicant has never organised or participated in a demonstration, which would place her at risk of arrest and being subjected to violence or torture. She has not engaged in high-level debate or criticism online and has no links to outlawed political organisations or Vietnamese political parties based overseas. The applicant did not experience any difficulty departing Vietnam and her family has not been subjected to any harassment from authorities. I accept that the applicant may fear persecution, but the evidence does not support a finding that there is a real chance she will suffer serious harm.
[3] MIEA v Guo (1997) 191 CLR 559 at 572
I accept that the applicant would be expected to report to authorities in order to comply with the household registration requirements. In the written submissions of 10 September 2019, the applicant’s representative alleged that the delegate had not considered the challenges faced by the applicant and her child by the 1997 Decree on Household Registration and Management in Vietnam. The submissions did not specify what the challenges might be.
In Vietnam, legislation on hộ khẩu (‘household member’) registration is covered by the Law on Residence (No.81/2006/QH11) which was amended by Law No. 36/2013/QH13, Decree No. 31/2014/ND-CP, and by the Ministry of Public Security’s Circular No. 35/2014/TT-BCA.[4] Article 22 of the Law on Residence provides ‘circumstances under which an individual’s name may be removed from a household member register by relocation or otherwise’:
Article 22.- Deletion of permanent residence registration
1. Persons who fall into one of the following cases shall have their permanent residence registration deleted:
[…]
d/ They settle abroad;
e/ They have registered their permanent residence at a new place of residence; for this case, the agencies which have carried out procedures to register permanent residence for citizens at new places of residence shall immediately notify the agencies which have issued the papers on household registration transfer for deletion of permanent residence registration at the old places of residence.
2. Agencies competent to register the permanent residence are also competent to delete the permanent residence registration.[5]
[4]‘Law on Residence (Vietnam), No.81/2006/QH11’, Viet Nam Ministry of Justice, Date of effect 2 July 2007, CIS29667;‘Indochina Law Quarterly. December 2015 & March 2015’, Baker &McKenzie, March 2015, Vol.23, No.2, CISEC96CF15205; ‘Circular No. 35/2014/TT-BCA’, Ministry of Public Security (Vietnam), Date of effect 28 October 2014, CISA447F083191; ‘Vietnam’s Household Registration System’, World Bank Group & Vietnam Academy of Social Sciences, June 2016, CIS38A80121252, p.3; ‘Law No. 36/2013/QH13’, Socialist Republic of Viet Nam. The National Assembly, Date of effect 1 January 2014 CIS36DE0BB2201;
[5]‘Law on Residence (Vietnam), No.81/2006/QH11’, Viet Nam Ministry of Justice, Date of effect 1 July 2007, CIS29667, art 22
On 5 August 2013, Vietnam’s Ministry of Public Security provided DFAT with information regarding Vietnamese nationals returning from abroad and the process of obtaining household registration. It was reported that returning Vietnamese nationals ‘must re-apply for registration’ by supplying relevant documentation. It was further reported that:
‘Vietnam’s Residency Law and accompanying regulations ensure Vietnamese who’ve been living overseas can register for permanent residency and receive household registration papers. Nothing in the Residency Law makes registration more difficult for individuals who no longer have relatives in Vietnam or who have acquired a criminal record overseas.’
Based on the above, I am satisfied that citizens returning to Vietnam are able to have their name re-entered into the household register in circumstances where it was previously removed. While it may pose an administrative burden, it would not put her at risk of serious harm. As I have found that she is not at risk of serious harm from authorities, I do not accept that attending the office to arrange for registration would place the applicant at risk.
Further, while I accept that the Penal Code states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence, I don’t accept that the applicant’s actions would have brought her to the attention of Vietnamese authorities beyond the individual police officer that spoke with her. As noted, there is evidence of just one post from the [Social media] account of [the applicant]. DFAT is unaware of any cases where the Penal Code has been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’. DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in organising people-smuggling operations.
I accept that the applicant has been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood, however I do not accept that the impact on the applicant’s mental health would amount to significant harm. She has not been prescribed any medication and she would be free to continue treatment with a counsellor on return. DFAT reports that while mental health services lack funding, particularly in remote provinces, they are provided through social welfare and social protection centres, hospitals and schools. NGOs also offer a range of mental health and psychosocial related services.
The applicant’s son in not an applicant for protection. As such, I cannot consider any potential risk he might face if he were to travel to Vietnam with his mother. In addition, the ‘best interests of the child’ principle in United Nations Convention on the Rights of the Child has no application to the determination of protection visas. The consideration of the best interests of children who are not applicants for protection (as [her son] is an Australian citizen) would be to focus on the wrong person.[6] I note that the applicant may be eligible to remain in Australia on the basis of the familial relationship and encourage her to seek migration advice in that regard.
[6] AZAEH v MIBP [2015] FCA 414
I have considered cumulatively what I have accepted of the applicant’s claim and find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if she were returned to Vietnam. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[7] I find that there are no 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 that she will suffer significant harm: s.36(2)(aa).
[7] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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 criterion in s.36(2).
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
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.
…

‘Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment’, Immigration and Refugee Board of Canada, Research Directorate, 24 February 2009, VNM103087.E, p.1

[2020] AATA 708

17 January 2020

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

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