1732558 (Refugee)

[2024] AATA 917

1732558 (Refugee) [2024] AATA 917 (24 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732558

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Rodger Shanahan

DATE:24 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 January 2024 at 11:57am

CATCHWORDS
REFUGEE – protection visa – Vietnam – compulsory military service – religion – Catholic – political opinion – anti-government – non-appearance before the Tribunal – delay before applying for a protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559

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 18 December 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 19 October 2016.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s 36 of the Act and 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 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.

4. 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.

5. 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 themselves 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, 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 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.

   CLAIMS AND EVIDENCE

   Protection visa application

9. The applicant made the following claim as part of his protection visa application:

10. I am a Vietnamese national and have no other nationality or right to enter or reside in a third country. I am the holder of a Vietnamese passport. I was born [in] 1996 at [location], Ho Chi Minh, Vietnam. I am currently single and have never been married. My usual occupation is an overseas student. I was born a Catholic and continue to be a committed member of my faith. I initially arrived in Australia [in] November 2014, on a student visa. Since my initial arrival in Australia I have not returned back to Vietnam. I am currently studying an intensive English language course in preparation for my university entry. I am intending on studying for a bachelor [degree] at [University 1].

11. My parents and [number] siblings continue to reside in Vietnam. I have [number] uncles and an auntie who are all Australian citizens and are permanently domiciled in Australia. Under Vietnamese law all males are required to complete compulsory national military service until they reach the age of 27. As I am currently aged 20 and will still be required to complete military service until I reach the age of 27. My objection to military service stem from my political and religious views. I hold strong objection to my government’s ongoing human rights violations, particularly with respect to political opposition and limitations that are placed on religious freedoms.

12. Whilst in Vietnam I did not openly express my political views and opposition to the current regime. This was due to fear that I will be detained and subjected to gross human rights violations whilst in Vietnamese detention. Any individual who expresses any dissenting political or religious views in Vietnam is routinely arrested and placed in detention. Even individuals who are required to complete military service and maintain deeply held objections to military service are detained and mistreated whilst in detention. If I return to Vietnam and refuse to complete military service, I too will be detained and subjected to gross human rights violations whilst in detention.

13. The Vietnamese government does not provide an alternative to military service and regard all objectors to military services as being enemies of the State and are punished accordingly.  My objections will result in me being placed in detention and whilst in detention I fear being subjected to severe mistreatment including torture, intolerable and inhuman prison conditions. The prisons in Vietnam are not fit any human occupation and violate every conceivable human rights convention in relation to prison conditions.

14. Even after the period of imprisonment, I will still be forced under duress to complete military service as there is no escape from such requirement. The Communist regime in Vietnam has an appalling human rights record with respect to all those who are actual or imputed to being political dissidents. The Communist regime does not tolerate any degree of political objections or opposition. If I return to Vietnam I will not willingly undertake military service on the basis of my personal convictions. This is despite the consequential actual and real threats to my personal safety.

15. I have many friends who were subjected to periodic detention whilst completing military service. They advised me of the horrendous prison conditions and physical mistreatment they endured. Many of them became extremely ill and continue to suffer from physical and psychological effects of the prison conditions. Even after they had served a period of imprisonment they continue to be adversely effected by a criminal record which impacts of their ability to gain employment, residency status, their dealings with the police and public officials.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant is a 27 year-old Vietnamese male.  The Tribunal accepts that he is Thai based on the copy of the applicant’s passport on the Departmental file. He arrived in Australia on a student visa [in] November 2014. He never commenced any study and he was issued with a non-compliance notice on 23 June 2015. The student visa was cancelled on 9 January 2017. He applied for protection on 19 October 2016.

17. The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is either genuine or ‘well-founded’. The applicant is required to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559) at 596:

    ‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for reasons of political opinion.  It remains for the Minister in the first place to be satisfied and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’

18. The applicant also failed to appear before the Tribunal on the day and at the time and place at which he was scheduled to appear nor did he contact the Tribunal to explain his failure to appear. There is no evidence that the hearing invitation was returned to the Tribunal nor was there a request for a postponement of the hearing.

19. The applicant’s representative twice asked for an extension of time for their reply to the hearing response and these were granted. The representative advised that they were unable to contact the applicant. SMS messages were sent to his nominated telephone number by the Tribunal reminding advising him of the hearing date and time. Pursuant to section 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

20. The Tribunal requested in writing that, prior to the hearing he provide a current letter from his parish priest attesting to his participation in parish activities in Australia and that the priest knew the reason that he was providing the letter, why the applicant would be required to render military service in Vietnam now that he had turned 27 and was no longer required to, and his history of medical treatment for the psychological issues he claimed to have suffered, including evidence of the treatment from Australian medical practitioners. He did not respond to this request.

    Military Service

21. The applicant claimed that he was liable for military service until the age of 27 which he objected to and would not complete. Country information[1] indicates that he would have only been liable for military service until the age of 25. Regardless, he has passed the age at which he would be liable for compulsory military service so this claim is no longer valid. He was given the opportunity to explain why he would still be liable but failed to provide a response. Given all this, I therefore do not accept that there is a real chance that the applicant will suffer serious harm on return to Vietnam because he is or would be liable for military service.

    Catholic Faith

    [1] DFAT Country Information Report – Vietnam, January 2022, p 26.

22. Although this claim did not form part of his protection visa application, he has subsequently provided some documentary evidence of his Catholic faith such as photos from Vietnam and a September 2017 letter from a parish priest in Sydney attesting to his attendance at mass and parish activities and that his family is an anti-communist family (no reason was given as to how this fact was known by the parish priest). The applicant was asked to provide a current letter from his parish priest attesting to his Catholic faith and participation in parish activities but none was forthcoming.  

23. I accept that the applicant is Catholic and that, at least until September 2017 that he practised his faith while in Australia. I do not however, accept that he is currently practising his faith or that there is a real chance that he would suffer serious harm on return to Vietnam as a result of his Catholic faith. He was given the opportunity to provide evidence of his current religious observance but failed to do so. I also note that country information indicates that Catholics are generally able to worship freely and receive the sacraments in Vietnam. Those who are not politically active face a low risk of official harassment. 

    Political Opinion

24. I do not accept that there is a real chance that the applicant will suffer serious harm on return to Vietnam for any anti-government political opinion he may hold. The applicant claimed that he held strong objections to the Vietnamese government’s human rights violations. He also claimed that whilst in Vietnam he did not openly express these political views. He has not provided any evidence that he has expressed any such views in the nearly ten years since he has been in Australia, either through public protest action, or more privately through social media in his own or other names. Indeed, there is a complete lack of evidence at all regarding any political activity he has undertaken either in Vietnam or Australia.

25. The 2017 letter from his parish priest claimed that his mother was involved in anti-government demonstrations in Vietnam, although how he knew this to be the case was not apparent. For all the Tribunal knows the priest may simply have been repeating what the applicant told him. I also note that the applicant has provided copies of what appear to be civil court cases against his mother in Vietnam with fines levied. There are also some media reports about freedom of speech and activists being jailed, but there is no accompanying statement explaining their relevance to the applicant’s claim. I also note that country information[2] indicates that document fraud is common in Vietnam, and given the court document appears to be a photograph of a paper document with handwritten entries, I am not able to lend it any weight.

    Other Issues

    [2] Ibid, p 35.

26. The applicant’s long delay before applying for a protection visa is also not indicative of someone who feared having to return to Vietnam. He did not apply for protection until nearly two years after he arrived in Australia, and nearly four months after being issued with a non-compliance notice regarding his student visa. He provided no reason for the delay in applying and, given he has a number of relatives living in Australia, the delay is even more hard to reconcile with the harm he claimed to fear back in Vietnam.

27. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J reason either now or in the reasonably foreseeable future.

    Complementary Protection

28. Because I do not accept that the applicant is liable for compulsory military service, that he will be unable to practise his Catholic faith, or that he is or would ever be engaged in anti-government political activity, or imputed with such, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

29. As a consequence I also do not accept that there 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 that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

30. 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).

31. 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).

32. 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 criterion in s 36(2).

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Rodger Shanahan
    Member

    
    

    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.

    …