1723912 (Refugee)

[2023] AATA 2400

1723912 (Refugee) [2023] AATA 2400 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723912

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Roslyn Smidt

DATE:24 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 April 2023 at 5:40 PM

CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from ex-husband, his family and new wife – abused and assaulted – delay in applying for protection – applied after student visa expired – vague, inconsistent and conflicting claims and evidence – short return with no harm – now married to asylum seeker from another country – consent to decision without hearing – member of family unit – no independent claims by second applicant child – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 438

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 29 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who are citizens of Vietnam, applied for the visas on 19 September 2016. The delegate refused to grant the visas on the basis that she was not satisfied there was a real chance she would suffer the harm she feared.

3. The applicant declined the opportunity to attend a hearing.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   Certificate relating to s438

10. A certificate attached to Department file [Reference] states that there is an item on the file the disclosure of which would be contrary to the public interest because it may disclose a confidential source of information. There is nothing on the document which suggests that it was provided in confidence and in any event it contains nothing of relevance to the current decision.

    Claims and evidence

11. [The applicant] is a [Age] year old woman of Catholic faith from Vietnam. She first arrived in Australia [in] March 2013 on a student visa. She visited Vietnam [in] July 2015. Her son arrived in Australia with her [in] July 2015. Her  student visa expired in March 2016.  She applied for protection on 19 September 2016. Her son was included n the application as a member of her family unit.

12. In a written statement dated 11 July 2016 the applicant said that she married her first husband in [Year] and they divorced in [Year] or [Year].  On [Date] she married a [Country] asylum seeker for arrived by boat in 2012. She had she feared she would be physically harmed by her ex-husband and his current wife if she returned to Vietnam.

13. The applicant said that her first marriage ended because she had problems with her husband and his family. They did not want her to work and objected to her behaviour, such as not coming home on time. Her husband hit her with a stick and threatened her with a knife. Her in-laws sometimes verbally abused her. She finally went to the police after he hit her in the face causing her to fall over a metal pole and cut her lip very badly. She reported this to the police which made her father-in-law very angry. She believes he used his influence with the police to prevent them taking any action. She decided to ask for a divorce. At first her husband refused to sign the papers, but when she said she was going to a lawyer he agreed.

14. The divorce was finalised in [Year]. She was given full custody of their son. Her husband was required to pay support and given visiting rights in relation to their son. After the divorce she moved to her mother’s house. Her ex-husband came to the house and harassed her. He never physically abused her, but he took their son out against her wishes and sometimes kept him for longer that they had agreed. Her ex-husband remarried before she left Vietnam. His new wife was jealous of her and did not like her ex-husband visiting their son. She fears that they may kill her if she returns to Vietnam.

15. The applicant attended an interview with the delegate on 19 September 2017. She appears to have repeated most of claims in her written submission, but also claimed that her husband had continued to assault her after their divorce. She said that she believed information in her written statement was different due to an error by her representative. When asked why she had remained in Australia after her student visa expired in 2016 she said that she was waiting for assistance from her second husband and she had relocated to Sydney in December 2015 and she was not sure how to catch a bus.

16. The delegate did not accept that the applicant was at risk of harm if she returned to Vietnam for the reasons claimed.

17. The applicant applied for review of that decision on 4 October 2017.

    CONSIDERATION OF Claims and evidence

18. On 3 March 2023 the Tribunal wrote to the applicant to advise her that her case would shortly be constituted to a Tribunal Member. She was advised that once her case had been constituted to a Member, she might be invited to a hearing which would be an opportunity for her to give evidence and present arguments about the issues in her case. She was advised that she could choose not to have a hearing for if she wanted the Tribunal  to make a decision based on the information already provided.  She indicated that she did not want a hearing and wanted the Tribunal to make a decision on the evidence already provided.

19. In her submissions to the Department the applicant claimed that she feared that her first husband and his current wife would seriously harm and possibly kill her if she returned to Vietnam. While she has provided some information regarding these problems, they lack detail, and many questions remain unanswered. She claims that her husband physically abused her when they were married but she has given conflicting accounts of the problems which she faced after the divorce. She appears to claim that some of her ongoing problems with her ex-husband related to his access to her son. Her son remained in Vietnam for some two years between 2013 and 2015 while she was in Australia. It is unclear where and with whom he lived during that time and whether he or his carers faced problems with his father. And even if I accept that the applicant’s ex-husband was abusive while they were married and that his new wife is jealous of her and their son, the evidence does not suggest that either of them would seek to kill her if she returned to Vietnam. There is no suggestion that the applicant was threatened or harmed by her ex-husband’s wife at any time prior to her departure from Vietnam. I also note that the applicant’s returned to Vietnam in 2015 and failure to seek protection until over three years after her first arrival do not sit well with the claim that she fears she would be killed if she returned.

20. If the applicant had attended the hearing it would have been possible to seek clarification of these matters and information on why she continues to fear her ex-husband some [Number] after they divorced and over ten years since she began to live in Australia. However, she declined the opportunity to attend the hearing and, on the evidence currently before me I am not satisfied that she faces a real chance of experiencing serious or significant harm from her ex-husband or his current wife or that she faces a real chance of suffering serous or significant harm for any other reason if she returns to Vietnam now or in the reasonably foreseeable future. I am therefore 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 Vietnam, there is a real risk that she will suffer significant harm.

21. No independent claims have been made by or on behalf of the applicant’s son. On the evidence currently before me I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to Vietnam now or in the reasonably foreseeable future. I am therefore not satisfied that he 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 Vietnam, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

22. For the reasons given above the Tribunal is not satisfied that any 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

23. The Tribunal affirms the decision not to grant the applicants protection visas.

    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.

    …