1727811 (Refugee) - [2018] AATA 433

1727811 (Refugee) [2018] AATA 433 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1727811
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Jason Pennell
DATE:15 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made 15 February 2018 at 10.23am

CATCHWORDS
Refugee – Protection Visa – Vietnam – Fear of harm from partner’s family – Social customs – Child born out of wedlock – Country information does not support claim – Charged with drug related offences in Australia – Chance of applicant being subject of death penalty – Chance remote – Degree of hardship in being removed from Australia – Harm suffered not significant

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
WZARI v MIMAC [2013] FCA 788

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa [in] August 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal by video link on 5 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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 (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.
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…

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 1727811 (Refugee)

Details

AGLC: 1727811 (Refugee) [2018] AATA 433
Case: [2018] AATA 433
Decision Date: 15 February 2018

CaseChat Overview and Summary

The applicant, a citizen of Vietnam, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear harm from her partner's family due to social customs and the fact that her child was born out of wedlock. She also raised concerns about potential repercussions related to drug offences with which she had been charged in Australia, including the possibility of facing the death penalty.

The Federal Circuit Court was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason, or whether she would suffer significant hardship if removed from Australia. Specifically, the court had to assess the credibility of the applicant's claims regarding the threat from her partner's family and the likelihood of facing the death penalty in Vietnam. The court also needed to consider the degree of hardship the applicant would experience upon removal.

In reaching its decision, the court considered the available country information concerning Vietnam, which did not support the applicant's claims of a real chance of facing the death penalty or significant harm from her partner's family due to social customs. The court found the chance of the applicant being subject to the death penalty to be remote. Furthermore, the court concluded that the harm the applicant claimed to have suffered was not significant enough to warrant the grant of a protection visa, nor did it establish a well-founded fear of persecution.

The court affirmed the Minister's decision to refuse the protection visa.

Orders