1729904 (Refugee)

[2022] AATA 2843

1729904 (Refugee) [2022] AATA 2843 (27 June 2022)

DECISION RECORD

Tribunal case number 1729904
DHA Ref: File Number

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – father’s protest against the government – Formosa Plant incident – fear of arrest – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Dranichnikov v MIMA [2003] HCA 26

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.

1.   The applicant [named] was born [on date] in Vietnam.

2.   This Tribunal has been satisfied that the applicant - based on the evidence on the departmental file (which includes a copy of her national passport), is a Vietnamese citizen without right to reside in any other country.

3.   The applicant’s identity and receiving country (Vietnam) are not in dispute.

4.   There is no evidence or argument(s) the applicant is a member of the same family unit of any person who holds a protection visa of the same class.

5.   The applicant came to Australia in 2013 as a [tourist] visa, and later applied for a permanent carer visa which was refused in 2016.

6.   The applicant applied for a protection visa on 29 June 2017. A Minister’s delegate refused to grant the applicant the Protection visa on 6 November 2017.

7.   The applicant’s claims are contained on the department case file [number], specifically folios 19-21. The applicant states she cannot return because she fears arrest because of her father’s claimed involvement in organising/participating-in a protest against the government in respect to their actions/inaction against “Formosa Plant incident”. The applicant’s claims have also been summarised (almost in totality) in the delegate’s decision record, which the applicant provided a copy of to this Tribunal.

8.   The applicant’s claims were so lacking in any detail, including for example dates of alleged incidents, dates of any of the claimed events, or any other corroboration whatsoever from any other person or organisation in respect to her individual or family claims.

9.   As the Tribunal was unable to make a favourable decision based on the information before it alone, the applicant was invited, though declined to attend a hearing as part of the Tribunal’s review.

1. The applicant has been represented throughout. The applicant’s agent advised this Tribunal on 31 May 2022 his client (the ‘applicant’) request the matter be decided “on the papers”. No other arguments were advanced, or evidence provided, other than the evidence and arguments present in the original application for protection dated 3 June 2016 (as brief as they are). To be clear, no evidence or argument(s) whatsoever, other than the lodgement of a review of the delegate’s refusal decision, have been provided to this Tribunal.

2. No new claims have been made.

3. The claims that were originally made have not be substantiated and the ability to discuss and make reasonable enquiry with respect to their credibility has been prevented due to the applicant’s exercise of her right not to participate in a hearing into her review.

   Analysis – credibility of claims

4. In determining whether an applicant is entitled to protection it is necessary to make findings of fact on relevant matters. While the Tribunal accepts when assessing credibility of claims the applicant receive the benefit of the doubt for claims that are generally credible, however the Tribunal is not required to uncritically accept all, or any, of the claims made by an applicant or have rebutting evidence available to it, before it can find that a particular fact asserted by an applicant has not been made out. The mere fact an applicant claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

5. While the concept of an ‘onus or proof’ is one buried in the practice and procedure of superior courts of law, and as a general proposition has no application to administrative decision making, there is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance. Section 5AAA of the Act makes plain that it is the applicant’s responsibility to specify all particulars of a claim and to provide sufficient evidence to establish that claim or claims. While it is not correct for the Tribunal to require particular evidence as a precondition for accepting that the applicant’s claim(s) are true, it is generally expressed and recognized principle that it is for the applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts. As Kirby J observed in Dranichnikov v MIMA:[10] “The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal …is to respond to the case that the applicant advances…”.

   Findings of fact

6. Having carefully considered the above, the applicant has not satisfied the Tribunal her father was involved in any way in any protested against the government of Vietnam. It follows, the Tribunal also finds the applicant has no reason to reasonably fear arrest or any harm whatsoever from the Vietnamese authorities, as the incidents which she claims, did not actually occur to her father. The Tribunal comes to this finding because the applicant’s claims are entirely unsupported, other than her few words in her protection visa application which are entirely lacking in specificity or detail of any meaningful note. The applicant’s family claims are also unsupported by any witness statement or corroborating account (including any statement from either parents or any other family members). They are unsupported by any photographs, or contemporaneous evidence the claimed protests ever occurred, and that her father participated in any. The applicant has not provided any information or evidence (from any external source, media outlet, non-government organisation for example) to support in any way her claim, including with respect to the claimed actions of the Formosa company. The applicant has not provided any specific dates, or detailed recollections of any protests such that the Tribunal may be able to make a favourable finding in respect to her claims.

7. Given the above, the Tribunal finds there is insufficient evidence to support any of the applicant’s claims. Accordingly, the applicant has not claimed to fear harm in Vietnam for any of the reasons given in Section 5J(1)(a) of the Act, and no other reason is apparent on the face of the evidence before the Tribunal. Accordingly, the Tribunal finds the applicant has not satisfied the Tribunal she is a person in respect to whom Australia has protection obligations as outlined in Section 36(2)(a) of the Act. It follows that the Tribunal also finds the applicant has not satisfied the Tribunal she is a refugee as defined by Section 5H(1) of the Act.

8. Further, none of the country information is relevant to the particular circumstances of the applicant’s father, particularly as the Tribunal has established, he did not participate in any protest, and by extension was never a person of any interest to the Vietnamese authorities for the reasons claimed by the applicant.

9. Given the finding above (rejection of the applicant’s claim), the Tribunal has not been satisfied there are any grounds (much less substantial grounds) for believing that, as a necessary and foreseeable consequence of being removed to Vietnam there is a real risk the applicant will suffer significant harm as defined in Section 36(2)(aa) of the Act. As the Tribunal has not been satisfied the applicant is a person in respect of whom Australia has protection obligations, an assessment in respect to Section 36(2C) has not been made.

10. For all the reasons above, the Tribunal affirms the decision not to grant the applicant a protection visa.

    By Member N. McGowan, made 27 June 2022 at 2:39pm, Melbourne.
    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.

    …