1717710 (Refugee)
[2022] AATA 2491
•14 June 2022
1717710 (Refugee) [2022] AATA 2491 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1717710
COUNTRY OF REFERENCE: Vietnam
MEMBER:Amanda Mendes Da Costa
DATE:14 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 14 June 2022 at 12.48pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – natural disasters and general economic conditions – low-paid labouring jobs – credibility – two unlawful maritime departures with voluntary and involuntary returns – delay in applying for protection visa – application made after long period as unlawful non-resident – no harm experienced or fear of harm if returned – country information – relocation and household registration – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FRC 15
Selvadurai v MIEA (1994) 34 ALD 347
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 19 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Vietnam. The first named applicant (the applicant) applied for the visa on 27 January 2017. The delegate refused to grant the visas on the basis that he was a refugee or was owed protection by Australia.
When the applicant validly applied to have the delegate’s refusal decision reviewed on 11 August 2017, the name of the second named applicant was included in the review application.
The applicant appeared before the Tribunal on 9 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity 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 (Cth) (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). 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).
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, 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
The issue in this case is whether the applicant is a refugee or is owed protection by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s nationality
Based on the applicant’s passport (which was submitted to both the Department and the Tribunal) and with no evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Socialist Republic of Vietnam (Vietnam). Accordingly, it accepts that Vietnam is the country of reference for the purposes of assessing the applicant’s claims under ss 36(2)(a) and (aa).
Applicant’s migration history
The applicant’s migration history as contained in the Department’s file is as follows:
13 January 2007 Applicant lodged application for Global Special Humanitarian (XB-202) Dependant visa at Ho Chi Minh City post 19 March 2008 Applicant refused Global Special Humanitarian (XB-202) Dependent visa 22 July 2008 Applicants lodged applications for Sponsored Family Visitor visas 16 September 2008 Applicants refused Sponsored Family Visitor visas 13 November 2009 Applicants lodged applications for Sponsored Family Visitor visas 11 February 2010 Applicants granted Sponsored Family Visitor visas [date] February 2010 Applicants arrived in Australia 14 May 2010 Sponsored Family Visitor (UL 679) visas granted to applicants 27 January 2017 Applicant lodged application for Subclass XA-866 protection visa 31 January 2017 Bridging visa C granted to applicants Applicant’s protection claims
The applicant’s protection claims may be summarised as follows:
·He left Vietnam to look for an open environment to live.
·He was not sure what would happen if he returned to Vietnam.
·He did not try to relocate as it is difficult, and it is ‘restricted by some economic conditions and laws.’
·The applicant ticked ‘no’ to the questions about whether he experienced harm in Vietnam, or whether he would be harmed or mistreated if he returned.
·In response to why he thought the authorities could not or would not protect him, the applicant wrote ‘I’m not sure about that.’
Country information
The Tribunal notes that the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam published in January 2022 indicates:
Economic Overview
1.1According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation.
Employment and welfare
1.2The official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.
1.3Vietnam is rapidly urbanising. The services sector has become the largest part of the economy at about 50 per cent of GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce. Some multinational companies looking to diversify their outsourced manufacturing have sought out Vietnam as an alternative location to other countries in the region for manufacturing, creating jobs for young people.
1.4The poor are eligible for a social welfare benefit from 60 years of age with greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector. Given the young population and high rates of informal work, a large number of people are not covered by any pension scheme. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.
1.5Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support.
INTERNAL RELOCATION
5.18Internal relocation is common. Police keep close watch over relocation and citizens staying even one night away from their homes must register with local police. The 2020 US Department of State Human Rights Report states that this is enforced more strictly in the Central and Northern Highlands districts.
5.19Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.
5.20There are two categories of registration (reduced from four under the previous law): temporary and permanent. Household registration requires citizens to register their permanent residence in only one district in Vietnam. To gain permanent residence status in a new district, citizens must either marry into a family already holding permanent residence, purchase land, or live in rental housing with an official lease and a minimum amount of liveable space.
5.21Large cities such as Hanoi and Ho Chi Minh City have previously enacted local legislation to prevent relocation. These regulations may change rapidly. For example, DFAT’s December 2019 Country Information Report reported that restrictions were in place in Hanoi to prevent rural-urban transmigration based on infrastructure and overcrowding concerns. Those restrictions were removed in 2020.
5.22In practice, internal migrants might be entitled to basic social services when they relocate to big cities like HCMC and Hanoi, but local authorities may not apply these policies consistently. Those who own a house or an apartment will have an easier time registering in one of those two cities. Those who attempt to relocate may experience bureaucratic difficulties, but DFAT understands that relocation is not impossible.
5.23Without a local registration, access to services such as public education and healthcare becomes difficult; a local registration is required to access government services. A child cannot be registered without household registration documents and an identity card. It is possible to re-register in a new locale after moving, but this process can be lengthy and difficult, which deters some people. According to a 2019 factfinding mission report by the UK Home Office, household registration is not a barrier to relocation; whereas previously major purchases such as a car required a local registration, these kinds of barriers have been removed over time. Still, registration would be required to sign up for utilities or internet service or obtain insurance.
5.24Internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people. For example, women whose husbands die may have difficulty getting cooperation from their in-laws, or recently released prisoners might be refused registration by police who do not want ‘troublemakers’ in their district.
TREATMENT OF RETURNEES
Exit and entry procedures
5.25Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel and is sometimes used against the families of persons of interest.
5.26Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
5.28Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.
Conditions for returnees
5.29Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.
Applicant’s oral evidence
The first named applicant (the applicant) was born in the city of Hue which is located in Thua Thien Hue Province, an area of Central Vietnam. The applicant’s father and his [siblings] continue to live in Hue.[1] The applicant was educated there, leaving school after completing Year 11.
[1] The applicant’s mother died in Vietnam shortly after he arrived in Australia.
The applicants were married [in] September 1993 and have two adult children, both currently living in Vietnam.
In 1991 the applicant left Vietnam and travelled on a small boat to [Country 1] where he spent 18 months in [a] Detention Centre for Vietnamese asylum seekers. This is located in [Location 1] and is operated by the United Nations High Commissioner for Refugees. The applicant arrived in [Country 1] [in] May 1991 and departed [in] September 2022 when he decided to return voluntarily to Vietnam.
Whilst living in Hue, the applicant worked in the fishing industry and also as [an Occupation 1]. The applicant said his wife (the second named applicant) was engaged in home duties. The couple do not have any children.
In 1993 the applicant married his wife in Hue and the couple left Vietnam as unauthorised migrants and travelled on a small boat with the aim of landing in [Country 2]. Due to weather conditions and the condition of the boat, it sank off the shore of [Country 3]. The applicants (together with the other passengers on the boat) were rescued by a [Country 3] ship and were transported to [Country 3]. The applicant and his wife were subsequently returned to Vietnam by [Country 3] authorities where the applicant was imprisoned for a few days in [Location 2]. The applicant explained that the second named applicant was not also imprisoned as only the men who returned were detained.
The applicant did not return to Hue after his release from detention because he was concerned that his file had been sent to the authorities in Hue and they would also imprison him if he returned there. The applicant instead travelled to Ho Chi Minh City where he lived for 12 months, working in unskilled labouring jobs. He did not take steps to register his residence in that city with the authorities.
The Tribunal discussed with the applicant his reasons for leaving Vietnam on two occasions with the intention of travelling to [Country 1] and [Country 2] as an unauthorised migrant. In response, the applicant said that he left Vietnam because there had been too many natural disasters in Hue, which had made it difficult for him to make a living there. This led him to having only the thought of going to other places in his mind.
The applicant explained that despite working two jobs in Vietnam, he had been unable to make ends meet. When the Tribunal suggested that he could have moved to another part of Vietnam (such as Ho Chi Minh City) to earn more money, he explained that this wouldn’t have made a difference because he did not have a tertiary education and would always only have low-paid jobs. In Ho Chi Minh City, he had low-paid labouring jobs.
The Tribunal noted that whilst the applicant had included the trip to [Country 1] in his visa application form, he had not mentioned his attempted trip to [Country 2]. The Tribunal asked the applicant about the reason for this omission. In response, he explained that perhaps this was because of his limited understanding of the English language. He also said that he had a good memory of the matters he referred to in his oral evidence, including dates. The applicant further advised that in the camp in the [immigration detention] Centre, he had worked as the assistant to the owner of a [store] in the camp. He also said that seeing how things were outside Vietnam helped him to insist that he leave Vietnam.
The Tribunal questioned the applicant about his reasons for travelling to Australia in February 2010. He explained that he and his wife had applied for sponsored family visitor visas which were granted on 11 February 2010 and they arrived in Australia on 14 February 2010. The applicant said they came to Australia in order to assist the second named applicant’s younger sister who was pregnant and required assistance with her health and childcare. The applicant has not returned to Vietnam since his arrival in this country.
The Tribunal discussed with the applicant his protection claims as set out in his visa application. The applicant said that if he were to return to Vietnam he could not be sure about his safety. He said that he believed the government in Vietnam is not the same as Australia and is not as free. He further explained that he had no trust in the Vietnamese government because he had seen so many tragedies happening to families there. These tragedies included a lot of physical abuse and privately owned land being confiscated, and having no right to free speech.
The applicant further explained that when he claimed (in his protection application) that he came to Australia because he was looking for an open environment, he meant that it was easier to gain employment in Australia and chose where to live.
The applicant told the Tribunal that whilst he had not been involved in political activities in Vietnam, in Australia he had been involved in [a cultural] community organisation which has social functions and commemorates the date on which the Communists assumed control of the south of Vietnam. The applicant assists with the preparation of meals for these events and hands out voting cards for the election of the community’s committee.
Since arriving in Australia, the applicants have both been working on a full-time basis. The applicant initially worked as [an Occupation 2] and for the past four years has been employed in a [factory] in [Suburb 1]. The second named applicant has been employed as [an Occupation 2] for the past 12 years.
The Tribunal discussed the country information it had read, and in particular that contained in the DFAT report published in January 2022. In response, the applicant said that he agreed with that information. He explained that a large part of the workforce in Vietnam was unskilled and paid low wages. In Hue, the opportunities for employment in the manufacturing industry was limited with only three factories operating in that city.
When the Tribunal suggested to the applicant that he had experience as [an Occupation 1] and would be able to work in this occupation if he returned to Vietnam, he said that there are a lot of Chinese imports in Vietnam and therefore there are few employment opportunities available to him there.
The Tribunal further suggested that country information available to it indicated that Vietnam has an organised legal system with a functioning police force offering legal recourse and protection to its citizens. This meant that if he and the second named applicant returned to Vietnam, they would be able to seek protection from the police and have recourse to the legal system for any civil claims. In response, the applicant explained that the legal system in Vietnam had not changed since his departure in 2010 and he feared that he could not earn a living in Vietnam as he was now in his [age range] and could not cope with the only available jobs to him, which involved hard labouring.
The Tribunal discussed with the applicant the cessation of his sponsored family visitor visa on 14 May 2010 and his decision to remain in Australia as an unlawful non-citizen until 27 January 2017 when he applied for a protection visa and was granted an associated bridging C visa on 31 January 2017. The applicant said that until 2017 he did not have any understanding about immigration law in Australia when he was advised by friends (with whom he was working on a [workplace]) that he could apply for a protection visa.
The Tribunal suggested to the applicant it would have expected him to approach the Department or take some steps to regularise his migration status after his sponsored family visitor visa ceased, if he was fearful of returning to Vietnam. However, he replied that he just didn’t know anyone who could help him. When the Tribunal further suggested that he could have approached his sister-in-law who previously assisted him with his sponsored family visitor visa, the applicant said that she was too young to understand about visas and her husband was more than 20 years senior to her. His sister-in-law lacked the skills to drive to his home and had [children] for whom she was caring.
When the Tribunal observed that the applicant’s sister-in-law knew enough to assist him in obtaining the earlier visa in 2010, the applicant said that he and his wife had completed all of the necessary paperwork in Vietnam which they sent to his sister-in-law in Australia. Her role was limited to posting the documentation to the Department here.
The Tribunal invited to applicant to tell it anything he wanted to say about the visa application and about his circumstances. In reply, he said that really wanted to stay in Australia.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All of this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim.
The Tribunal does not have the responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim (s 5AAA of the Act), nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[2] MIEA v Guo 91997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FRC 15 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[3] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[3] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[4] The United Nations High Commissioner for Refugees’ handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196.
Findings
The Tribunal accepts that the applicant (who is aged [Age] years) is a married man who was born in the city of Hue in Vietnam, where he was educated and where his father and siblings continue to live. The applicant left school after completing Year 11 and has no tertiary qualifications.
The Tribunal further accepts that:
·The applicant travelled to [Country 1] (as an unauthorised migrant) in 1991 where he lived in a UNHCR centre for 18 months before voluntarily returning to Vietnam. In 1993 the applicants attempted to travel to [Country 2] (again as unauthorised migrants) but their boat capsized and sank off the cost of [Country 3]. The applicants were rescued and taken to the [Country 3] mainland from where they were returned to Vietnam.
·The applicant was detained for a few days on his return to Vietnam.
·The applicant was employed in Vietnam in various jobs including fishing, working as [an Occupation 1] and labouring.
·The applicants have [adult children] who are living in Vietnam.
The Tribunal accepts the country information for Vietnam set out in paragraph 16 of this decision. In particular, the Tribunal accepts that although the economy in Vietnam is growing, wages for low-skilled workers in Vietnam are modest and the rate of informal unemployment is high.
The Tribunal does not accept that the country information indicates that the city of Hue has suffered any more natural disaster incidents than any other place in Vietnam. Even if there was a real chance of serious harm on that basis if the applicant returned to Hue (which is not accepted), the Tribunal considers that the applicant could relocate to another part of Vietnam. In this respect, the Tribunal notes that he previously relocated to Ho Chi Minh City after his return from [Country 3] where he lived and worked for approximately 12 months.
The Tribunal acknowledges that country information indicates that the applicant may experience some difficulties in relocating if he returns to Vietnam due to requirements for residents to be registered with a household registration book and the bureaucracy involved in changing registration. The Tribunal further acknowledges that this system of registration is more restrictive than in Australia where residents are free to live and work where they choose and without any requirement for registration. However, the country information for Vietnam indicates that relocation is not impossible and the Tribunal considers that the applicant (albeit with some effort) could relocate to another part of Vietnam.
Although the applicant claims that he left Vietnam to travel to [Country 1] and [Country 2] (without a valid visa) because of the number of natural disasters occurring in Hue, the Tribunal considers that the primary reason for him leaving the country in that manner was for economic reasons. The Tribunal considers that the applicant believed that he would have better work opportunities in [Country 1] and [Country 2] and that he would earn higher wages in those places.
The applicant claims that the reason for him travelling to Australia (with the second named applicant) was for the purpose of assisting his sister-in-law with her pregnancy and the care of her own family. Whilst the Tribunal accepts that the applicants were partially motivated in coming to Australia by a desire to visit family, it considers that the primary reason was for economic reasons and that they chose to remain in Australia where their wages were significantly greater than those available to them for similar work in Vietnam.
The Tribunal notes that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness or at least the depth of the applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The Tribunal does not find, as either credible or convincing, the applicant’s explanation for not taking any steps to regularise his migration status for almost seven years after his sponsored family visitor visa ceased in May 2010. Had the applicant a genuine, urgent and deep fear of returning to his country of origin and nationality, based his fear of being unable to support himself (and his wife) financially or his previous actions in leaving Vietnam without permission, it would be reasonable for the applicant to have applied for a protection visa at a considerably earlier point in time.
The Tribunal does not accept the applicant’s explanation for deciding not to approach his sister‑in‑law for assistance with his migration status after his sponsored family visitor visa ceased. The Tribunal considers that she was required to do more than merely post the applicant’s application for that visa and that she was required to provide sponsorship information to the Department. The Tribunal considers that the applicant could have approached her to discuss his situation and that of the second named applicant (her sister) rather than remaining as an unlawful non-citizen.
The applicant does not make any claims that he has a real chance of serious harm or a real risk of significant harm based on his previous attempts to relocate to [Country 1] and [Country 2] without permission in his current application for protection in Australia. However, the Tribunal has considered the imputed claim that he would suffer harm as a result of his attempts to relocate and work overseas. In this respect, the Tribunal notes that when the applicant returned to Vietnam from [Country 3] in 1993, he was only detained by the authorities for questioning for a short period of time and no further action was taken against him. This suggests that the authorities in that country accepted that neither of the applicants engaged in smuggling people for profit or facilitating such activities, nor was any action taken against the second named applicant who was not even detained for questioning. This is consistent with the country information which indicates that DFAT is not aware of any cases where failed asylum seekers have been penalised for their actions in leaving Vietnam and seeking asylum. However, the Tribunal accepts that returnees including failed asylum seekers face a range of problems on their return, including unemployment or underemployment and difficulty in accessing social services and reobtaining household registration. Although the applicant may experience some of these difficulties if he returns to Vietnam, the Tribunal considers that he has demonstrated an ability to re-establish himself on two previous occasions (without penalisation) and is likely to be able to do so again.
The applicant claims that if he returns to Vietnam he will only be able to obtain work as a labourer. This is due to his lack of tertiary education or trade qualifications. He further asserts that that due to his age ([Age] years) he will not be able to cope with such physically demanding work and will be left without employment and any financial support for himself and the second named applicant. When the Tribunal suggested that given his current employment in a factory and previous experience as [an Occupation 1], he would be able to secure skilled work in Vietnam, the applicant responded that he would not be able to obtain such work in Hue as the import of cheaply manufactured goods from [Country 3] had led to the closure of all but two factories in Hue. Whilst the Tribunal accepts that the applicant may experience more difficulty in obtaining employment in Hue than other parts of Vietnam, it considers that he is able to relocate to find suitable work if he returns to Vietnam.
The Tribunal considers that the applicant’s desire to live in an “open environment” is due to his wish to remain in a country where he can live and work where he chooses without government regulation. However, the Tribunal is not satisfied that this means the applicant fears suffering harm in returning to Vietnam. In this respect, the Tribunal notes that the applicant has made no claims in either his written application or oral evidence of having previously suffered serious harm in Vietnam, nor fear of this occurring if he now returns to that country.
On the basis of the evidence before the Tribunal (both individually and cumulatively), for the reasons set out above, the Tribunal does not accept that there is a real chance the applicant faces serious harm from the Vietnamese authorities based on his claim that he wishes to live in an “open environment” and the difficulties associated with relocation or for any of the reasons set out in s 5J(1)(a), if he returns to his home in Vietnam, now or in the reasonably foreseeable future.
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).
The Tribunal has also considered whether the applicant meets the complementary protection criterion and whether it has 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 the applicant will suffer any significant harm, as required by s 36(2)(aa).
Based on the above evidence, the Tribunal is not satisfied 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 the applicant will suffer significant harm of any kind, as set out in s 36(2A).
Accordingly, the Tribunal finds that the applicant does not satisfy the complementary protection criterion as required by s 36(2)(aa) of the Act.
As mentioned above, as there are no refused or cancelled primary decision pertaining to the second named applicant, it follows that the Tribunal does not have jurisdiction in relation to her.
However, the Tribunal is satisfied that the second named applicant as the spouse of the applicant is a member of his family unit for the purposes of s 36(2)(b) or (c) and the fate of her application depends on the Tribunal’s findings regarding the applicant. Given those findings, the Tribunal does not consider that the second named applicant meets the requirements for the grant of a protection visa.
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Amanda Mendes Da Costa
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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