1711646 (Refugee)

[2017] AATA 2925

1711646 (Refugee) [2017] AATA 2925 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711646

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Nicole Burns

DATE:27 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2017 at 11:03am

CATCHWORDS

Refugee – Protection Visa – Vietnam – Imputed political opinion – Anti-government views – Participation in political protests – Applicant did not attend hearing – Claims lacking in detail

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 360, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] December 2015. The delegate refused to grant the visa [in] February 2017. 

3. By letter dated 18 October 2017 the Tribunal invited the applicant to attend a hearing on 14 November 2017 to give evidence and present arguments relating to the issues arising in his case. The Tribunal advised in its hearing invitation letter that it had considered the material before it, but was unable to make a favourable decision on this information alone. On 12 November 2017 the Tribunal received a letter from the applicant (emailed via a friend) advising that he would not be attending the hearing, believing he had stated in his application the reasons he is seeking protection, and requesting the Tribunal to make a decision ‘in my favour allowing me to stay in Australia as I fear to return to my home country Vietnam where I will be mistreated’. Based on this advice the Tribunal has proceed to make a decision on the review on the material before it as per section 360(2)(b) of the Migration Act.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

10. According to information on the Departmental file and confirmed at hearing, the applicant is a [age] year old man from Ha Tinh province in Vietnam. 

11. The applicant presented his initial claims for protection in his visa application as follows:

    Why did you leave that country?

    I used the mean of a [temporary] visa to leave my country.  Otherwise I will not be able to leave Vietnam. I completely disliked the Vietnamese government because I found there are no human rights, no freedom of speech no freedom of faith in Vietnam.  The government is totally corrupted.  I once worked in the private company, we were required to provide every single personal details, background of each employee and be controlled by the government. 

    What do you think will happen to you if you return to that country?

    During my time in Australia, I have participated to the protest against the Vietnamese government because of its authoritative policy and not democratic at all.  If have to return to Vietnam, I was told by my family member the local police has been regularly contacting my family and asked whereabouts I am at present.  This is the sign I will be immediately detained by the police at Vietnam airport because of my activities in Australia. 

    
    Did you experience harm in that country?

    Yes. The police in Vietnam often asked all the young workers to attend their meetings so that they can bully us. Once, I was held in the police station because at the meetings I expressed my view stating the Vietnamese government must hold referendum like other western countries to seek their own citizens views.

    Did you seek help within the country after the harm?

    No. Because the strict law in Vietnam.  If the government knew I approached any organisation or person to seek help about my situation, I would be place in the re-education camps for a number of years. 

    Did you move, or try to move, to another part of the country to seek safety?

    No.  Because going overseas is a very difficult process in Vietnam.

    Do you think you will be harmed or mistreated if you return to that country?

    Yes.  The local police may detain me because I was told by my family they are looking for me.  If I return to Vietnam, I will be placed in the detention centre that they often called as “re-education” camps.  They will then place me in the hard labour camp for one period of time.

    
    Do you think the authorities of that country can and will protect you if you go back?

    No. Because the government itself controlled citizens and they are looking for me. 

    Do you think you would be able to relocate within that country?

    No. Because wherever I relocated, I had to register with local police or local governments.  Overall, the government will eventually know where I live anyway.  

    [errors in original]

12. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vietnam, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicant travelled to Australia on a valid Vietnamese passport and states that he is a national of Vietnam. The delegate had no concerns about the applicant’s identity.  Therefore the Tribunal finds the applicant is a citizen of Vietnam and has assessed the applicant’s claims against Vietnam as his country of nationality and receiving country.

14. The applicant claims he holds anti-government views, that he was held by the police in the past in Vietnam because of his anti-government views, and that he has been participating in protests against the Vietnamese government in Australia.

15. The Tribunal found the applicant’s claims in his visa application very general and lacking detail in significant respects.  For example he claims he left Vietnam because he disliked the Vietnamese government because there are no human rights, no freedom of speech or freedom of faith and that the government is corrupt.  However apart from stating he once had to provide personal details and background of all employees in a company he worked for to the government, he did not provide any particulars about that company, or provide any other details including whether his human rights, freedom of speech or faith had been adversely affected in Vietnam in the past, and if so how and by whom.  As a result, the applicant has provided little detail regarding any specific instances of past harm. 

16. Similarly, whilst the Tribunal has had regard to the applicant’s claim that he participated in protests against the Vietnamese government in Australia and as a result local police have been regularly visiting his family members in Vietnam, the applicant has not provided any details about the protests including their aim, the extent of his involvement in the protests (and any other anti-government activities), or why the Vietnamese authorities have taken an adverse interest in him as a result.  The applicant submitted to the Department copies of photographs of people protesting holding signs and placards along with an Australian flag and accompanied by untranslated Vietnamese text.  However the applicant has provided no details about what these photographs purport to depict and the Tribunal gives them no weight. 

17. The Tribunal notes the applicant stated in his email advising that he would not be attending the hearing that he fears being mistreated in his home country, however he did not elaborate or provide any further details or context. 

18. Accordingly, given the limited evidence before it, the Tribunal is unable to be satisfied that the applicant was involved in any anti-government activities in the past in Vietnam, that he was held by the police in the past in Vietnam because of his anti-government views, and that he has been participating in protests against the Vietnamese government in Australia. It follows that the Tribunal is not satisfied that the applicant had to leave Vietnam for fear of being persecuted by the authorities because of his anti-government political opinion or that he has a profile on return that would lead to serious harm because of his involvement in anti-government activities in Australia.

19. In this case the Tribunal observes that the applicant has not provided the level of detail necessary to satisfactorily establish the relevant facts of his case.  However, despite being advised by the Tribunal in writing on 18 October 2017 that it was unable to make a favourable decision in his case on the basis of the information before it, the applicant failed to provide the Tribunal with any further information in support of his claims or to attend the Tribunal hearing to give evidence in respect of them.

20. Based upon the limited evidence before it, the Tribunal is unable to be satisfied that there is a real chance of the applicant being persecuted now or in the reasonably foreseeable future, for reason of his political opinion or any other refugee reason.

21. 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).

22. 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). Given the limited information before it and for the reasons set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. 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).

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Nicole Burns
    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.

    …

    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 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.

    (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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …