1721292 (Refugee)

[2023] AATA 2412

1721292 (Refugee) [2023] AATA 2412 (23 May 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721292

COUNDTRY OF REFERENCE:                Vietnam

MEMBER:Roslyn Smidt

DATE:23 May 2023

PLACE OF DECISION:  Sydney

Replace the word Colombia with the word Vietnam in line 3 of paragraph 20.

Date: 3 July  2023

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721292

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Roslyn Smidt

DATE:23 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2023 at 3:23 PM

CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from relatives after brother killed father over property dispute while applicant in Australia – no contact and no attempt to gain access to or share of property – compassionate circumstances – married to Australian citizen and has two young  citizen children, one with developmental delay – application for spouse visa not accepted for unclear reasons – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 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 dependants.

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 23 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who is a citizen of Vietnam, applied for the visa on 7 September 2016.

3. The applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her husband [Mr A].

4. The applicant is unrepresented.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    background

11. [The applicant] is a [Age] year old woman. She is married to [Mr A] who is an Australian citizen.  They have two children who are also citizens of Australia.

12. The applicant first arrived in Australia in July 2008 as dependent on her mother’s student visa. She briefly returned to Vietnam in July 2010 and 2012. She last entered Australia [in] October 2013. She applied for residency as a dependent of her mother on a partner visa in 2013. Her application failed because the delegate found that she did not meet the requirements in relation to dependency. She applied for review of that decision in August 2016, but the Tribunal did not have jurisdiction to consider the application as it was not lodged within the relevant timeframes. At the hearing she said that she had also attempted to apply for a spouse visa some years ago, but lodgement of the application was not accepted. It is unclear why.

    Claims and evidence

13. The applicant lodged a protection visa application on 7 September 2016. In essence she said that her brother murdered her father after a dispute over ownership or occupancy of the family home. While she was not present at the time her father was killed his second wife and other relatives blamed her and attacked her when she visited Vietnam. 

14. The applicant failed to attend a schedule interview with the delegate. The delegate was not satisfied on the available evidence that she was entitled to protection.

15. At the hearing the applicant said that there were family problems before she and her mother left for Australia as her father had begun a relationship with another woman. Her brother lived with her and her mother in Australia some years, but then returned to Vietnam. He was suffering from mental health issues and stabbed their father to death in 2011, apparently when his father attempted to remove him from the family home. He was not charged following his father’s death. He was confined to a psychiatric institution.

16. After the applicant’s father died her paternal uncles took over the family home and also took what money remained. The applicant returned to Vietnam in 2012 with her mother. She attempted to visit the family home to pay respects to her father, but his family chased her away.  She did not attempt to visit the house again or to contact her father’s family. She has not contacted her father’s family since the visit in 2012. Neither she nor her mother have taken any action to try and gain a share of her late father’s estate.  However, she was afraid that they might harm her if she returned because they might fear that she would attempt to get a share of the property.

17. I observed that as it was over ten years since she had visited Vietnam and she had made no attempt to contact them or to gain access to her father’s property that, it seemed highly unlikely that her father’s family would have any interest in pursuing her if she returned to Vietnam now. She agreed that this was probably correct.

    CONSIDERATION OF Claims and evidence

18. I accept that the applicant’s brother killed her father and that her father’s relatives were abusive and chased her away when she sought to visit the family home in 2012. However, there is not suggestion that they pursued or threatened her or her mother in any way during the time she remained in Vietnam in 2012.  It is now over ten years since the applicant’s encounter with her father’s family in Vietnam. There is no suggestion that she has sought to gain access to the former family home or her father’s estate since that time and no suggestion that she has any intention of doing so in future. In these circumstances, I am not satisfied that there is a real chance that her father’s relatives would seek to harm if she returned to Vietnam.

19. I am not satisfied that there is a real chance that the applicant would suffer serious or significant harm from members of her father’s family if she returned to Vietnam now or in the reasonably foreseeable future. As there is no suggestion that she fears harm for any other reason I am not satisfied that she faces a real chance of suffering serious or significant harm for any reason if she returns to Vietnam now or in the reasonably foreseeable future.

20. It follows that I am not satisfied that she has a well-founded fear of persecution for any of the reasons  in s 5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that he will suffer significant harm.

    REFERRAL FOR MINISTERIAL CONSIDERATION

21. Under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.

22. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:

    • 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
    • Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the applicant leave the country.

23. The evidence before me indicates that the applicant is married to an Australia citizen and has two Australian citizen children. On 27 January 2023 she provided a copy of a report from [Paediatrics] from the [Suburban] Local Health District which states that her older child who is currently about [Age] old has Global Developmental Delay, with scattered developmental skills and has been assessed as meeting the criteria for Autism Spectrum Disorder Level 2. He is receiving funding from the NDIS for the range of supports and treatments and requires. The applicant does not work outside the home and has primary responsibility for the care of her two young children.

24. For these reasons, the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of the applicant’s circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.

    CONCLUSION

25. 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).

26. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

27. 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).

    DECISION

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

    Roslyn Smidt
    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.

    …