1713723 (Refugee)

[2021] AATA 4179

1713723 (Refugee) [2021] AATA 4179 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713723

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mr S Norman

DATE:21 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2021 at 1:10pm 

CATCHWORDS

REFUGEE – Protection visa – Vietnam – applicant failed to attend tribunal hearing – applicant was accused of anti-state activities – Tribunal is not satisfied all the statutory elements for the grant of protection are made out – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 424, 426, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 144 ALR 567
Luu & Anor v Renevier (1989) 91 ALR 39
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, had applied for the visa on 22 November 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 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. On 19 July 2021 the Tribunal issued a s.424(2) letter (dispatched by email), with a response due by 2 August 2021. No material response was received by the Tribunal.

7. On 19 July 2021, the Tribunal also issued a hearing invitation letter (dispatched by email), inviting the applicant to attend a hearing scheduled for 21 September 2021. By email dated 25 July 2021, the applicant said he could not attend the hearing as he was then in Victoria, and he could not return to NSW.

8. As the hearing was to be conducted during a COVID-19 lockdown in Sydney, by letter dated 20 August 2021 (dispatched by email), the Tribunal advised the applicant it proposed to proceed to hear his case on 21 September 2021, by telephone. The applicant was then asked to confirm that the mobile telephone number identified in that letter (and also identified in his Application for Review form lodged with the Tribunal), was the number on which he could be contacted on the day of the hearing. No further response was received from the applicant.

9. In the aforementioned hearing invitation letter dated 19 July 2021, the Tribunal had 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 applicant was also 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.

10. The Tribunal sent two SMS hearing reminder texts to the applicant (both were noted as having failed to be delivered). On the day of the scheduled hearing (21 September 2021), the Tribunal had also made two unsuccessful attempts to contact the applicant by telephone.

11. Therefore, and 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:

12. The applicant (DOB: [date]) said he travelled to Australia to study. However, in 2016 (around which time the applicant was residing in Australia unlawfully), he said that Formosa, a Taiwanese Steel company with their plant in central Vietnam, had discharged toxic industrial waste into the ocean. This led to a water pollution crisis that affected provinces in central Vietnam, including his hometown (he claimed to have resided in Ho Chi Minh city between June 2006 and August 2013). Later, some friends protested in Vietnam over the toxic waste spill caused by the Taiwanese Steel Company, Formosa.

13. The applicant then posted a link on his [social media] page about the protesters – and he called for people to demonstrate (the applicant was residing in Australia at the time). He also sent a small amount of money to support his friends who were demonstrating. However, some of his friends were subsequently arrested and he was told by someone who works for the local authorities that he (the applicant) was accused of anti-state activities and he would be arrested. The applicant now fears he will be arrested if he returns to Vietnam.

    Assessing the applicant’s claims:

14. The Tribunal has seen a photocopy of the applicant’s passport on the Department file,[1] 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 made any [social media] protest, that he sent money in support of the protesters, or that he was accused of anti-state activities and/or that he would be arrested in Vietnam; given the information before the Tribunal included inter alia that without more, the Vietnamese authorities have generally tolerated protests relating to the spillage.[2]   

    [1] Department – folio 3.

    [2] ‘Vietnamese rally outside Taiwanese steel plant that spread toxic waste’, Reuters, 2 October 2016, CX6A26A6E10045;

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 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

    
    
    

‘Vietnam’s Dead Fish May Spawn a Stronger Culture of Dissent’, Chau Hoang, Centre for Strategic & International Studies, 30 September 2016, p.2, CIS38A80122116; ‘Formosa Spill Still Roils Public Opinion in Vietnam’, Radio Free Asia, 7 December 2016, CX6A26AE14775; DFAT COUNTRY INFORMATION REPORT, VIETNAM, 13 December 2019.