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1724982 (Refugee)

1724982 (Refugee)

Case [2022] AATA 3841 16 August 2022

Judicial Review

Statutory Construction

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1724982 (Refugee) [2022] AATA 3841 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Nikhom Wong (MARN: 1171875)
CASE NUMBER:  1724982
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jason Pennell
DATE:16 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 August 2022 at 8.55am

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – fear of serious harm due to TNHH Formosa polluting incident – mother’s resulting cancer – food supplies polluted – resulting financial difficulties – no evidence of participation in protest or anti-government activities – no evidence of how polluting incident would lead to persecution – no systematic and discriminatory conduct toward applicant – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

CASES

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Vietnam applied for the visa on 5 April 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
3.The applicant appeared before the Tribunal on 9 August 2022 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video or telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
5.The applicant was represented in relation to the review.

Criteria for a protection visa

6.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1724982 (Refugee)

Details

AGLC: 1724982 (Refugee) [2022] AATA 3841
Case: [2022] AATA 3841
Decision Date: 16 August 2022

CaseChat Overview and Summary

The applicant, a citizen of Vietnam, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear serious harm if returned to Vietnam due to the TNHH Formosa polluting incident, which had allegedly caused his mother to develop cancer and polluted food supplies, leading to financial difficulties. The applicant did not claim to have participated in any protest or anti-government activities.

The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a reason specified in section 91R of the *Migration Act 1958* (Cth), specifically whether he would be persecuted as a member of a particular social group. This involved assessing whether the alleged harm was systemic and discriminatory, and whether the applicant's fear was objectively reasonable in the circumstances.

The Tribunal found that there was no evidence to suggest that the applicant would be persecuted as a member of a particular social group. While acknowledging the environmental and health impacts of the TNHH Formosa polluting incident, the Tribunal concluded that the applicant had not demonstrated how this incident would lead to persecution directed at him. There was no evidence of systematic and discriminatory conduct towards the applicant, nor any indication that the general difficulties arising from the pollution would amount to persecution for a Convention reason.

The Tribunal affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution.

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