1712799 (Refugee)

[2021] AATA 3619

1712799 (Refugee) [2021] AATA 3619 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712799

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mr S Norman

DATE:30 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 4 August 2021 at 09:10am

CATCHWORDS
REFUGEE – protection visa – Vietnam – decision on the papers requested – demonstrated against the Vietnamese government in Australia – willingly contacted the Vietnamese authorities in Australia to acquire a passport – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 and Border Protection on 13 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of Vietnam, applied for the visa on 17 June 2016.

2. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

3. 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 (PV) of the same class.

   Mandatory considerations

4. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. The Tribunal issued a s.424(2) letter dated 19 July 2021 (dispatched by email to the authorised recipient) with a response due by 2 August 2021. No material response was lodged with the Tribunal, within the prescribed time.  

7. By hearing invitation letter also dated 19 July 2021 (again, dispatched by email to the authorised recipient), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 September 2021.

8. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

9. By agent email dated 27 August 2021, the agent advised the Tribunal ‘[w]e are instructed to advise that the applicant does not wish to attend the hearing and have requested a decision on the papers instead’.

10. Pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    The applicant’s claims and the delegate’s findings:[1]

    [1] Department – from folio 8.

11. The applicant said he travelled to Australia in 1997 (PV lodged 17 June 2016) to study English. Since arriving in Australia he had demonstrated against the Vietnamese government. He fears he will be imprisoned and killed should he return to Vietnam. The applicant said he and his family would be harmed should he return to Vietnam. He said there was no freedom of thought or speech in Vietnam and that everyone is controlled by the government. He said the Vietnamese authorities wanted to kill him as he had spoken out against the government. At the time of his departure from Vietnam, he said he was “not on the radar”. He said if he now returned to Vietnam he would be arrested at the airport, charged and/or killed.

12. The delegate recorded the applicant as claiming that in 2012 he had approached the Vietnamese authorities in Australia in order to obtain a valid passport in his own name. The delegate also noted the applicant’s substantial delay in seeking a PV in Australia (being some 18 years after he arrived); and that he had willingly contacted the Vietnamese authorities in Australia in 2012, in order to acquire a valid passport in his own name. Neither of these satisfied the delegate the applicant’s fear was genuine.

13. The delegate also noted the applicant provided no details or evidence to substantiate his claim (of having demonstrated against the Vietnamese government), and the delegate was not satisfied the applicant had demonstrated he had any political profile which would attract the attention of the authorities in Vietnam.

    The Tribunal’s assessment of the applicant’s claims:

14. The Tribunal has seen a photocopy of the face-page of the applicant’s passport on the Department file[2], and I accept he is a citizen of Vietnam, and that Vietnam is his receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he had demonstrated against the Vietnamese government either in Australia or elsewhere; or that he would wish to do so should he return to Vietnam; nor that he has, or would be, imputed with a political opinion by the Vietnamese authorities or anyone else.

    [2] Department – folio 45.

15. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

16. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.

17. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in Vietnam.  

    Finding:

18. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. 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

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

    Mr S Norman
    Member