1721072 (Refugee)

[2022] AATA 4556

1721072 (Refugee) [2022] AATA 4556 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)

CASE NUMBER:  1721072

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Sheridan Lee

DATE:26 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 26 October 2022 at 9:24am

CATCHWORDS
REFUGEE – protection visa – Vietnam – decision on the papers – partner visa refused – paucity of information – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [The applicant] is a [age]-year-old man from Vietnam. He first arrived in Australia [in] December 1998 on a Subclass 560 Student visa and completed an English language course at [education provider]. He was granted a further visa of the same type onshore on 18 February 2000.

3. On 1 June 2000, [the applicant] applied for an onshore Partner visa (combined UK-820 and BS-801). The Subclass 820 Temporary Partner visa was granted on 29 January 2001.

4. On his application for protection form, the applicant stated that he was refused a partner visa and ‘overstayed’. Departmental records confirm that on 19 February 2003 the Subclass 801 Permanent Partner visa was refused. The previously held Subclass 820 visa ceased on 28 February 2003. [The applicant] remained in Australia unlawfully until he lodged a protection visa application on 17 January 2017.

5. [The applicant] married Australian citizen, [Ms A], [in] October 2004. The couple had a son on [date]. [The applicant] provided the Tribunal with a copy of his marriage certificate and the birth certificate of [Child B], issued by the Victorian Registry of Births Deaths and Marriages.

6. The applicant was represented in relation to the review.

   CLAIMS AND EVIDENCE

7. On the application for protection form, [the applicant] claimed that he could not live in Vietnam. No information about why he couldn’t live in Vietnam was provided. He stated that the unidentified problem could not be solved by living in another part of the country. Finally, he said that the government could not assist. The form indicated that [the applicant] would provide further documents and a written statement. However, no further evidence was submitted to the Department prior to the date of the delegate’s decision. [The applicant] was not invited to participate in an interview with the delegate.

8. The application for protection form reports that the applicant returned to Vietnam in April 2001 to visit family. Departmental records confirm that [the applicant] departed Australia [in] April 2001 and returned [in] May 2001. At the time of the application, [the applicant]’s brother and sister were living in Australia. His mother and father lived in Tan Chau, An Giang, Vietnam.

9. [The applicant] provided extremely limited information with his application for protection. Accordingly, the delegate was not satisfied that the applicant would face a feal risk or chance of serious or significant harm in Vietnam.

10. On 8 September 2017, [the applicant] applied to the Tribunal for merits review of the decision to refuse to grant him a protection visa. A copy of the delegate’s decision record was provided to the Tribunal.

11. [The applicant] was first invited to participate in a hearing to take place on 1 June 2022. However, on 17 May 2022, his representative requested that the hearing be adjourned. The Tribunal agreed to the request and the hearing was rescheduled for 18 July 2022.

12. On 11 July 2022, the applicant’s representative advised the Tribunal via email that [the applicant] would not participate in the hearing. [The applicant] provided consent for the Tribunal to make a decision on the available evidence, without taking further steps to allow for him to appear. Written submissions were attached to the email, along with a range of documents evidencing the authenticity of [the applicant]’s relationship with [Ms A].

13. The submissions acknowledge that the applicant does not meet the criteria for the grant of a protection visa. No claims for protection were put forward on [the applicant]’s behalf. The representative instead requested that the Tribunal refer the matter to the Minister for Immigration, Citizenship and Multicultural Affairs for consideration.

14. The Minister has the power under the Act to substitute a decision of the Tribunal with a decision that is more favourable to the applicant if they consider it in the public interest to do so.[1] The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention. One of those types is described as:

    Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    [1] Section 417 of the Act.

15. In the current matter, the representative argued that [the applicant]’s departure from Australia would be severely difficult and unsettling for the applicant’s wife and son, [Child B]. It was submitted that the Minister should consider the best interests of an Australian child. I note that [Child B] was [an adult] at the date of this decision.

    FINDINGS

16. No detail about the type of harm the applicant would face in Vietnam was provided to either the Department or the Tribunal. In the submissions of 11 July 2022, it was conceded that the applicant does not meet the criteria for the grant of a protection visa. Those criteria are set out in the attachment to this decision.

17. In addition, having considered the information contained in the application for protection and submissions to the Tribunal, there was nothing about [the applicant]’s profile that would give rise to a claim for protection.

18. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa). 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).

19. [The applicant] has been in Australia for more than 24 years. He is married with an [age]-year-old son, who will complete high school this year. I accept that separation from his Australian wife and child would take an emotional toll on the family.

20. Nevertheless, insufficient information was provided to the Tribunal about the potential impact to an Australian citizen or an Australian family unit for me to determine that the applicant’s removal would result in serious, ongoing and irreversible harm and continuing hardship.

21. Having considered the guidelines, I do not consider the matter suitable for referral to the Minister. I note that the applicant is not precluded from making a request for ministerial intervention upon receipt of this merits review decision.

    decision

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

    Sheridan Lee
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    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.

    …