1721245 (Refugee)

[2022] AATA 2443

1721245 (Refugee) [2022] AATA 2443 (25 May 2022)

ReviewNumber:          1721245
DecisionDate: 25 May 2022

CATCHWORDS

REFUGEE – protection visa – Vietnam – applicant fears judicial sanction for obtaining and using a fake passport – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 5H, 36, 65

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 dependant.

DECISION RECORD

1.  On 30 August 2017 the applicant - [name deleted] (born [Date 1]), was refused a protection visa. The applicant applied for the visa on 24 January 2016.

2.  The identity and nationality of the applicant are not in contention in this matter. The applicant has used the name [Alias 1] (DOB [Date 2]) as an alias (previously). The applicant concedes he entered Australia under that alias, using a fraudulently acquired passport and visa (in 2007). The applicant also concedes he became - and remained - an unlawful non-citizen for some nine years, though he claims this was not intentional. The applicant regularised his migration status when he applied for the protection visa which is the subject of this review.

3.  There is no evidence presently before the Tribunal that the applicant has a current right to enter a third country. Accordingly, s.36(3) of the Act does not apply.

Protection claims

4.  The applicant’s protection claims and associated evidence, provided up until the refusal decision, are found in department case [file].
 

5.  A copy of the claims is contained in the applicant’s ’Application for a protection visa’. The claims can be summarized as follows:
After completing a trade qualification in Vietnam, he was asked to join the Communist Party and he refused because he is Catholic. As a result, he was unable to find work. His two cousins worked for the former regime prior to 1975 and two of his uncles were killed by Communists during the war. If he returns, he will be charged for changing his name, arranging fake documents to obtain a passport and leaving Vietnam. Because of his family background he will receive heavier penalties, to to prison and never be able to work again. Without work the applicant won’t be able to support his wife and children. There is no state protection for people like the applicant to relocate. His mother’s home in Vietnam has been visited on three occasions by local authorities (in 2019) who have made enquiry as to whether the applicant is still registered at her home. The applicant fears he will end up in prison if he is forced to return because of the fake documents he acquired and used.

6.  For the record, while the applicant attended a hearing into the review, conducted 25 May 2022, the applicant has not provided any new documentary evidence to the AAT for consideration outside his oral claims.

Analysis

7.  In order to satisfy the definition of being a ‘refugee’ the applicant must fear harm in Vietnam for any of the reasons given in Section 5J(1)(a) of the Act. The harm the applicant fears is judicial sanction for obtaining and using a fake passport. There is no evidence the applicant faces this harm because he is Catholic, though he’s imputed the ‘sanction’ would be “heavier” because of this. This aspect of the applicant’s claim is speculative and without support or corroboration. Even were the Tribunal to accept his aspect of his claim, there is no country information, or any other evidence presented, which satisfies the Tribunal this is a ‘well-founded fear’. In addition, the applicant’s references to his historic interactions with the CP, including those of his relatives - with their connections to the former regime, are unsupported other than in the applicant’s oral claims. Conflating these claimed/or actual occurrences may help explain the applicant’s concerns or fears but does not establish that they are more than speculative. Indeed, the Tribunal finds they are speculative. In summary, the applicant has not satisfied the Tribunal he has a ‘well-founded’ fear of being persecuted for any of the reasons contained in the Act: Section 5J(1)(a). It follows, the Tribunal finds the applicant fears prosecution for deeds he concedes to, not persecution.

8.  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. Accordingly, 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. An assessment in relation to Section 5H(2) of the Act has not been made as it is not the basis for the visa refusal under review.

Complementary protection

9.  Having concluded that the applicant does not meet the ‘refugee’ criterion, the Tribunal has considered section 36(2)(aa) of the Act. The Tribunal, in not accepting any of the applicant’s claim for the reasons outlined above, is consequentially not satisfied there are substantial grounds (or in fact any grounds in this case) for believing that, as a necessary and foreseeable consequence of being removed to Vietnam there is a real risk the applicant will suffer significant harm as defined in section 32(2)(aa) of the Act. It follows the Tribunal finds the applicant is not a person in respect to whom Australia has protection obligations. There is no suggestion or evidence that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy section 36(2).

1. Given all the above, as the applicant has not satisfied the criteria for the grant of the protection visa the Tribunal must affirm the decision under review.
   
   

2. This statement is made at 2:57pm 2on 5 May 2022 in Melbourne, 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…