1723913 (Refugee)
[2018] AATA 1210
•14 March 2018
1723913 (Refugee) [2018] AATA 1210 (14 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1723913
COUNTRY OF REFERENCE: Vietnam
MEMBER:Christopher Smolicz
DATE:14 March 2018
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 March 2018 at 2:07pm
CATCHWORDS
Refugee – Protection visa – Vietnam – Economic reasons – Unpaid debt – Poor government system – Credibility
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] HCATrans 323Any 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
This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.
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.
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 themself 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).
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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue advanced by the applicant in her protection visa application is whether she meets the refugee criterion or comes within Australia’s complementary protection obligations because she borrowed money from relatives and cannot repay the debt. She fears she will be caught by the creditors who could beat her, cause her injury or kill her.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [divorced] woman. She was born in Thua Tien Hue, Vietnam. She declared that she belongs to the Vietnamese ethnic group and that she is a Buddhist. She has [grown-up] children who have remained in Vietnam.
The Tribunal has assessed the applicant’s claims against Vietnam as the receiving country.
The applicant has travelled to Australia on a passport issued by the Socialist Republic of Vietnam. She travelled to Australia as a holder of [Visa 1] on the following occasions:
· she arrived [July] 2009 and departed [October] 2009; and
· she arrived [August] 2010 and the visa ceased [September] 2010.
The applicant continued to remain in Australia unlawfully until she lodged the protection visa application [in] December 2016. [In] December 2016 she was granted a bridging visa in association with her protection visa application.
The applicant provided the following information (unedited) in support of her protection visa application:
Question 89 Why did you leave that country(s)?
I left my own country because distrust of the judiciary and low enforcement, poor system of government, burreacracy starting from the lowest lever up to the top. The distruction of the global economy impact on the nations economy. Poverty and unemployment are still big, due to such problems, as the people of Vietnam, I has been living in harsh conditions so I had to borrow money from relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Vietnam have problems like me, who borrowed money had been hit, injured and killed.Question 90 What do you think will happened to you if you return to that country(s)?
If I return to my country, I will get caughtby creditor and could be beaten, injured or killed. They will searching me.Question 91 Did you experienced harm in that country(s)?
Yes I already experience harm in that country because I already received verbal threatened from them to hurting me. Besides that, I live in hardship (because the bad economy)Question 92 Did you seek help within the country after the harm?
Yes but nothing happening because this is a matter of economy of the country (they consider as a personal problem)Question 93 Did you move, or try to move, to another part of that country(s) to seek safety? No.
Give reasons why you did not try to move to another part of the country(s)
I did not try to move to another part of the country because this is a matter of socio-economic. I will experience the same problem even move to another place (inside that country)Question 94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes I will live in harsh conditions, suffered discrimination for Tawainese womenQuestion 95 Do you think the authorities of that country(s) can and will protect you if you go back?
No because the authorities could not protect me because this is a matter of socio-economic. I will experience the same problem.Question 96 Do you think you would be able to relocate within that country(s)?
No, unable to relocate because this is a matter of socio-economic. I will experience the same problem.The delegate found that the applicant was not a refugee as defined by s.5H(1) of the Act and assessed her claims against the complementary protection criterion. The delegate had regard to country information regarding economic development, loan sharks and police protection in Vietnam and found the applicant was not a person to whom Australia has protection obligations and refused to grant the applicant a protection visa.
AAT merits review
On 4 October 2017 the applicant applied to the Tribunal to review the decision. The applicant provided the Tribunal with a copy of the delegate’s decision.
On 4 October 2017 the Tribunal wrote to the applicant acknowledging her application. Among other matters, the letter advised the applicant that:
· if she wished to provide material or written arguments to the Tribunal for consideration she should do so as soon as possible; and
· for language assistance she was able to contact the Translating and Interpreting Service on 131 450.
The applicant did not provide any submissions or evidence in response to the letter.
On 22 February 2018 the Tribunal wrote to the applicant pursuant to s.424A of the Act. The letter informed the applicant that in assessing her Application for a Protection visa (form 866C) the Tribunal noted that she declared that she did not receive any assistance in the completion of the form. The Tribunal also noted that the applicant signed the form and declared that the information supplied is complete and correct and up-to-date in every detail. Specifically, the letter informed the applicant that in assessing her claims the Tribunal had become aware that her answers to questions 89 to 96 (detailed above) are worded identically to the answers provided by a number of other Vietnamese asylum seekers whose claims are currently before the Tribunal. The letter advised the applicant that, subject to her comments, this would lead to the conclusion that her claims for protection are not genuine. If the Tribunal finds her claims are not genuine, then on the current information before it, the Tribunal would find that she does not meet the criteria for grant of the protection visa and affirm the decision under review. The applicant did not respond to the Tribunal’s letter.
On 22 February 2018 the Tribunal wrote to the applicant and invited the applicant to take part in a hearing on 13 March 2018 to give evidence and present arguments. The hearing invitation contained an information sheet about hearings held in the Migration and Refugee Division.
Tribunal hearing
The Tribunal explained to the applicant the purpose of the proceedings. The Tribunal questioned the applicant about her application form. The applicant said that her [Relative 2] and [Relative 1] helped her complete the form because her English was not good. She does not remember what information is contained in the form. She could not provide any evidence to the Tribunal about the contents of the form.
The Tribunal questioned the applicant about her migration history. The applicant said [Relative 1] who resides in Australia had sponsored to travel to Australia.
The Tribunal told the applicant it was concerned that when her visa expired in September 2010 she did not approach the Department but remained unlawfully in Australia for over six years. The applicant said she understood her visa ceased and she was in Australia unlawfully. She claimed life was difficult in Vietnam. She claimed that people told her [Relative 2] that she did not have the option of applying for a protection visa at that time.
The Tribunal explained to the applicant the issues raised in the s.424A letter. The applicant said she was aware the Tribunal had sent her correspondence. She discussed it with her [Relative 2] and [Relative 1]. They told her it had something to do with learning the law. They did not tell her anything else because they were busy working on their farm.
The Tribunal asked the applicant why she travelled to Australia. The applicant said she worked as [Occupation 1] in Vietnam. She said that life was very poor in Vietnam and it was difficult for her to make enough money to support her children. The applicant said she came to Australia for economic reasons.
In response to the Tribunal’s questions the applicant said that she has not been harmed in the past and did not fear any harm in Vietnam in the future. She is not a member of any organisation or political party. She has never had any problems with the authorities. She has never been arrested or detained by the authorities in Vietnam. No one is trying to kill her in Vietnam.
The Tribunal explained to the applicant that her evidence at the hearing was inconsistent with her application form where she declared that she fears that she will be beaten, injured or killed if she returns to Vietnam.
The applicant said she wanted [Relative 2] to give evidence about the form.
The Tribunal took evidence from the applicant’s [Relative 2]. [Relative 2] said that he works as [Occupation 2]. He and his wife have provided the applicant with accommodation and food. He is not a migration agent. He assisted the applicant to complete her application form. He said that he did not understand the form and knew some other people who had applied using similar forms. He copied the information from the other people. He did not pay the people any money. The people that helped him came from the same village in Vietnam. When they first arrived in Australia he helped them and gave them food and clothes. They helped him in return.
Using the procedure in s.424AA of the Act the Tribunal explained to the applicant that the evidence given by [Relative 2] is that the claims made in her protection visa applicant have been copied from others and do not relate to her and may not be genuine. The Tribunal explained to the applicant that if it finds her claims are not genuine it would affirm the decision under review. The Tribunal asked he applicant if she wanted time before she made a comment or respond to the information. The applicant did not request further time.
The applicant said she wants to stay in Australia because life is better in Australia. She has been in hiding for the past seven years in Australia. When she is unwell she can only go the pharmacy. She wants access to Medicare. She asked the Tribunal to help her stay in Australia.
The Tribunal explained to the applicant that it did not issue the visa itself and it must assess her application against the legal criteria. The Tribunal explained to the applicant that the reasons she has given for wanting to remain in Australia are not grounds that are relevant to the protection visa application.
Findings
The applicant declared in the protection visa application that she could be beaten, injured or killed by creditors if she returns to Vietnam because she could not repay money she borrowed. She claims that the authorities would not protect her because of it is a ‘matter of socio-economic’. The Tribunal finds that the applicant’s fear of harm in Vietnam relates to a personal matter.
The Tribunal finds that the claims detailed the applicant’s protection visa application are not genuine. The Tribunal does not accept the applicant has borrowed money and fears harm from creditors in Vietnam. The Tribunal does not accept the applicant will be beaten or killed by creditors if she returns to Vietnam in the reasonably foreseeable future. The Tribunal finds the applicant has not had any problems with the authorities in Vietnam. She was able to obtain a validly issued Vietnamese passport and legally travel to Australia in 2009 and 2010.
The Tribunal finds that the applicant has not claimed to fear harm in Vietnam because of her race, religion, nationality, political opinion or membership of a particular social group. There is no evidence before the Tribunal to suggest that the applicant will be targeted on her return to Vietnam for one of the reasons mentioned in s.5J(1)(a) of the Act.
Having considered the applicant’s evidence the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if she returns to Vietnam. Her fear of persecution is not well-founded.
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).
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).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[1] It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person for reasons of her actual or imputed political opinion as a necessary and foreseeable consequence of her being removed from Australia to Vietnam.
[1] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323).
Having found that the claims are not genuine, the Tribunal is not satisfied that are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk she will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
MemberATTACHMENT - 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Standing
0
2
0