1718663 (Refugee)

[2022] AATA 2295

1718663 (Refugee) [2022] AATA 2295 (24 May 2022)

DECISION RECORD

CATCHWORDS

REFUGEE – protection visa – Vietnam – no claims to protection – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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 dependants.

1.    The [applicant] applied for the Subclass 866 visa on 6 July 2016 (departmental file [number]). Two claimed members of the applicant’s ‘family unit’ were combined with the application: [names deleted]. The visas were refused by a delegate for the Minister on 19 July 2017. The applicant sought review of those refusals to this Tribunal on 21 August 2017. The applicant’s identities as a citizen of the Socialist Republic of Vietnam are not in dispute. A copy of the applicants’ Vietnamese passports have been provided.

2.    Further to the above, the Tribunal accepts that based on the evidence before it, section 36(3) of the Act does not apply to the applicants.

3.    The applicant’s protection claims are contained in the departmental file. As the Tribunal was unable to make a favourable decision on the information before it alone, it invited the applicant to a hearing conducted 24 May 2022. The applicant nor his representative appeared before the hearing at the scheduled hearing. Shortly after the scheduled hearing time the applicant’s representative emailed the Tribunal as follows:

We note that [the applicant’s] matter was scheduled for a hearing today which we understand that he and his family members did not attend.

We understand that the Member has the discretion to dismiss the review without any further consideration of the application or the information before the Tribunal.

We are instructed however to request for the application NOT to be dismissed and that [the applicant] would like to request for the review to be decided on the papers.

We are instructed that [the applicant] and his family wish to have the option to make a request for ministerial intervention under s417.

4.    The Tribunal has not dismissed the matter, as requested (above).

5.    The Tribunal notes the applicant not only did not attend the hearing, but has also not provided this Tribunal with any evidence or argument whatsoever in respect to the protection claims since (at least) the time he lodged their applications for review with the AAT on 21 August 2017. In addition, his decision not to attend the hearing denies the Tribunal the opportunity to assess the credibility of the applicant’s claims, discuss the relevant country information, or clarify the claims in any way.

6.    The Tribunal has proceeded with the review notwithstanding the above.

7.    Subsections 1B and 1C (Section 36 (1A) (a) of the Act) will be considered by the Minister - not the Tribunal - as these are not the basis for the visa refusals.

8.    Section 36(1A) (b) is the ambit of this review. Therefore, the applicant must satisfy at least one of the criteria in subsection (2).

9.    Claims are made in respect to s.36(2)(a) and s.36(2)(aa). There are no claims or evidence the applicant satisfies - or can satisfy - any of the other alternatives under Subsection (2).

Refugee criteria – Section 36(2)(a) of the Act

1. The last time the applicant has not claimed to fear harm for any of the reasons given in Section 5J(1)(a) of the Act, and no other reason is apparent (nor logical) on the face of the evidence before the Tribunal.

2. Accordingly, the Tribunal finds the applicant will not face any persecution for any of the reasons outlined under Section 5J(1)(a) of the Act.

3. Given the above, it follows that the applicant has not satisfied the Tribunal he is a refugee as defined by Section 5H(1) of the Act.

4. Given the above, the applicant has not satisfied the Tribunal he is a person in respect to whom Australia has protection obligations as outlined in Section 36(2)(a) of the Act. It follows, the Tribunal is not satisfied the applicant is a refugee as defined by Section 5H(1) of the Act and there does not satisfy section 36(2)a of the Act.

   Complementary protection – Section 36(2)(aa) of the Act

5. In the circumstances of this case, where none of the applicant has provided any oral or documentary (written) evidence whatsoever, particularly since the claims were made some six (6) years ago, the Tribunal cannot reasonably deduce that any grounds (continue to) exist (in the circumstances) for believing a real (or indeed any) risk of ‘significant harm’ will be suffered by the applicant if he is removed from Australia for Vietnam.

6. Accordingly, the Tribunal finds there are not substantial grounds for believing a real risk of ‘significant’ harm’ will be suffered by the applicant if he is removed from Australia to Vietnam.

7. Given the above, the applicant has not satisfied the Tribunal there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam there is a ‘real risk’ he will suffer ‘significant harm’. It follows the applicant has not satisfied the Tribunal he satisfies Section 36(2)(aa) of the Act.

8. As the applicant has not satisfied the criteria necessary for the grant of the visa, it follows the claimed members of the family cannot.

9. For all the reasons given above, the Tribunal affirms the decisions not to grant the applicants protection visas.

   Statement made 24 May 2022 at 3:04pm in Melbourne by N. McGowan

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …