1728245 (Refugee) - [2023] AATA 1510

1728245 (Refugee) [2023] AATA 1510 (23 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1728245
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Andrew McLean Williams
DATE:23 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration, with the following directions:
(i)The Applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 23 March 2023 at 9:37am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – membership of particular social groups – people in significant debt with no ability to repay – people of adverse interest to powerful people or groups due to significant debt – people involved in a large-scale illegal arrangement to leave Vietnam – failed asylum seekers – religion – Catholic faith – there is a real chance that the applicant will suffer serious harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 101, 109, 499
Migration Regulations 1994, 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 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 and Border Protection on 19 October 2017, thereby refusing to grant the Applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicants, who are all citizens of the Socialist Republic of Vietnam, originally applied for the visas on 21 October 2016. The Delegate refused to grant the visas on the basis of the Delegate having determined that the first-named Applicant was not a person in respect of whom Australia has any protection obligations, as outlined in either of s.36(2)(a), or s.36(2)(aa) of the Migration Act. In these circumstances, the other named Applicants - as family members of the first-named Applicant – also did not qualify, under either s.36(2)(b) or s.36(2)(c) of the Act.
The Applicants appeared before the Tribunal in Brisbane, on 26 May 2022 to give evidence. The Tribunal hearing was conducted with the assistance of a Vietnamese-English interpreter. The Applicants were represented in relation to this review by Ms Carina Ford of Carina Ford Immigration Lawyers, Footscray Victoria. Ms Ford also attended the Tribunal hearing in Brisbane. In addition to the Applicant, the Applicant’s wife, and one of the Applicant’s three sons also gave evidence before the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are as set out in s.36 of the Act, and in 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…

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 1728245 (Refugee)

Details

AGLC: 1728245 (Refugee) [2023] AATA 1510
Case: [2023] AATA 1510
Decision Date: 23 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa claims of several applicants from Vietnam. The primary dispute concerned whether the first applicant was owed protection obligations by Australia under section 36(2)(a) or 36(2)(aa) of the *Migration Act 1958* (Cth). If protection obligations were owed to the first applicant, the other applicants, as family members, would also qualify. The Tribunal was satisfied with the applicants' identities and their status as citizens of Vietnam, which was considered the receiving country.

The legal issues before the Tribunal were whether the first applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by section 5J of the Act, and whether Australia had protection obligations under section 36(2)(a). Additionally, the Tribunal was to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Vietnam, the first applicant would suffer significant harm, thereby engaging section 36(2)(aa). The Tribunal also had to address a preliminary issue regarding the validity and disclosure of a certificate issued under section 438 of the Act, which contained potentially adverse information about the applicants.

The Tribunal found it unnecessary to consider the claims for complementary protection under section 36(2)(aa) because it was satisfied that protection obligations were owed to the first applicant under section 36(2)(a). This determination was made in accordance with Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy section 36(2)(a) of the *Migration Act 1958* (Cth).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84 as 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 the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that these are relevant to the claims under consideration.CONSIDERATION OF Claims and evidence At the outset, the Tribunal records that it is satisfied with the identity of each of the Applicants, as citizens of the Socialist Republic of Vietnam. Vietnam is the ‘receiving country’ for the purposes of assessment of the Applicants’ protection claims; and the Tribunal is also satisfied that none of the Applicants have any entitlement to reside in any third country, being any country other than either Vietnam, or Australia. The central issue in this case is whether the first-named Applicant is owed protection obligations by Australia under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act. In the event that protection obligations are owed to the first-named Applicant, then it follows that the other Applicants will qualify as ‘family members’, under either s.36(2)(b), or (c) of the Act. None of the other named Applicants have made any specific protection claims of their own, such that the factual claims that are under consideration by the Tribunal primarily relate to the first-named Applicant, although it was submitted[1] on behalf all the Applicants that the threat of recrimination action by illegal money lenders (‘Loan Sharks’) in Vietnam against the first-named Applicant may also be exacted against other family members, as well. On that basis at least, and because of s.5K of the Act, the claims made by the first-named Applicant and as now discussed in greater detail below have been treated by the Tribunal as if these were a broader ‘family claim’, and applicable mutatis mutandis to all members of the [family].[1] Transcript, 26 May 2022, p. 20-21, lines 41- 21. See also p. 22 line 5 – p.23 line 24. For the reasons now expressed by the Tribunal, further below, the Tribunal has concluded that the matter should be remitted for reconsideration, subject to a direction from the Tribunal.A preliminary issue Before dealing with the Applicants substantive protection claims, it is necessary to deal with a preliminary matter. On 10 April 2019, a certificate under s.438 of the Act was issued by the Department in relation to certain information, informed to the Department about the Applicants in Australia by means of an anonymous “dob-in report”, and assessed by the Department as potentially adverse to the Applicants. On 6 May 2022 the Tribunal wrote to Carina Ford Lawyers as the representative of the Applicants, disclosing a copy of the s.438 certificate, and inviting submissions regarding the validity of same. On 20 May 2022 Carina Ford Lawyers wrote to the Tribunal submitting that the certificate issued under s.438 was invalid, on specified grounds; or alternately, that the material covered by the certificate should still be disclosed to the Applicants, in an exercised of the Tribunal’s discretion (‘the preliminary issue’).

Decision

Reasons for decision

In light of the Tribunal’s findings regarding protection obligations pursuant to s.36(2)(a) it becomes unnecessary for the Tribunal to proceed to consider the question of any entitlement to complimentary protection, pursuant to s.36(2)(aa) of the Act.DECISION The Tribunal remits the matter for reconsideration, with the following directions:(i) The Applicants satisfy s.36(2)(a) of the Migration Act.Andrew McLean WilliamsMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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