1802456 (Refugee)

[2021] AATA 3438

1802456 (Refugee) [2021] AATA 3438 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802456

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Senior Member N Manetta

DATE:2 September 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 02 September 2021 at 11:31am

CATCHWORDS

REFUGEE – Protection visa – Vietnam –absence of any close family members – applicant was not aware that it was a protection visa application – the grounds for a protection visa set out in the application form are false – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65,499

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 January 2018 to refuse to grant [Mr A] a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (the Act).

2. [The] applicant applied for the visa on 13 April 2017. The delegate refused to grant the visa on the basis that the grounds specified in [Mr A]’s application for the visa did not meet the eligibility criteria specified in the Act.  I need not set out or summarise the delegate’s reasoning.

3. [Mr A] appeared before the Tribunal on 7 April 2021 and then again on 30 April 2021 to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence before me, I must decide whether [Mr A] meets the criteria for the grant of a protection visa specified in s 36(2)(a) or (aa) of the Act.  I conduct what is known, technically, as a de novo hearing on the merits.  That is, I reach the correct or preferable decision on the basis of the evidence before me irrespective of the presence, or absence, of any error in the delegate’s reasons.

   STATEMENT OF CONCLUSION

5. I have decided to affirm the decision under review.  Below I set out salient parts of the evidence given by [Mr A], which I accept, my critical findings of fact, and my application of the legal regime.

   [MR A]’S EVIDENCE

6. [Mr A] gave evidence before me, which I accept. He was honest and truthful.  He was born in [year], and was, therefore, [age] years of age at the time of the hearing before me. He was born in Bac Lieu province in Vietnam and did his schooling there. Both his parents died many years ago.

7. I understand that he was entrusted, at the age of [age], to the care of his paternal grandmother as his parents had decided to flee Vietnam.  They perished at sea, unfortunately.  He has no siblings. He lived with his grandparents, but his grandfather died when he was very [young], he said. [Mr A] was then raised solely by his paternal grandmother, who died in 2016.

8. [Mr A] left school when he was [age] and, from that time on, stayed at home to look after his grandmother. He has uncles and aunts in Australia, and they have been sending money to Vietnam to assist in his upkeep.  He also worked [at a] farm that his grandparents owned. He made some money from this enterprise with which to support his grandmother and himself, but, as I have said, he also received money from Australia.  His grandmother died in 2016, as I have said.

9. I note that [Mr A] married in 2003 and has two children from the marriage. The marriage was not happy, however, and [Mr A] said there was a divorce in 2010.   His ex-wife has since remarried.   At the time that [Mr A] came to Australia in 2017, his former wife and children were living in [Country 1].

10. [Mr A] confirmed his arrival in Australia in 2017. I asked him why he came to Australia, and he replied that after his grandmother’s death, there was no one to live with. He had visited Australia twice before and liked it here.  In 2007, he had come on his own on a three-month holiday. Similarly, in 2009, [Mr A] came here on his own for a holiday.  His uncle in Australia paid his airfare on both occasions.  

11. The [farm] in Vietnam is presently being worked by his youngest aunt. He confirmed that he now owns the farm.

12. His uncle in Australia purchased the ticket for his third trip to Australia in 2017. He likes Australia very much.   His uncle operates a labour-hire business that employs people who are hired out to work on agricultural properties, including vineyards.  He works for his uncle.

13. [Mr A] was clear to me that his only reason for not returning to Vietnam is the absence of any close family members.

14. [Mr A] confirmed that he did not understand what visa he had applied for. The visa application was prepared by someone else, he said. He gave evidence that his uncle paid someone to prepare it. [Mr A] has very little written English and he did not read through the application. He was not even aware that it was a protection visa application. The questions and the answers given on his behalf were not translated to him in his own language before the form was submitted. His uncle does not read English either.

15. At the end of the hearing, [Mr A] indicated to me that he would like to stay longer because of a medical condition his uncle has. 

16. On 7 April 2021, I gave [Mr A] a further opportunity to comment on my concerns about the application form. The application form is in exactly the same terms as other protection visa application forms that have come before me from other applicants. I drew this to [Mr A]’s attention. I suggested to him that my concern was that he had purchased a form from someone who had not taken his instructions.  Rather, the person had simply put in information that was not true in [Mr A]’s case.  Obviously, for example, the claim in the form that [Mr A] fears being discriminated against as a Taiwanese woman in Vietnam is false. [Mr A] had no further comment to make on this concern when the hearing resumed on 30 April 2021.

    CRITICAL FINDINGS OF FACT

17. So far as my critical findings of fact are concerned, I find that the grounds for a protection visa set out in the application form are false.  I find that [Mr A] owns a small [farm] in Vietnam. I find that he was substantially alone in Vietnam, and that his loneliness there after the death of his grandmother and his liking of the Australian way of life are the only reasons for his trip to Australia in 2017. I find further that [Mr A] did not point to any harm that he would suffer in Vietnam on his return. I note that [Mr A] derived some, if limited, income from his prawn farm in the past, and it can be expected that he would continue with that occupation in Vietnam should he return. In the past, he has also been assisted by his uncle in Australia.  He is also capable of performing in Vietnam the same type of farm work he presently performs in Australia.

    APPLICATION OF LEGAL REGIME

18. Given these findings of fact, I may state my conclusions in respect of the application of the legal regime very briefly. [Mr A] must bring his circumstances within either paragraph (a) or paragraph (aa) of s 36(2) of the Act.

19. A protection visa under section 36(2)(a) is granted in respect of applicants to whom Australia owes protection obligations. Such persons must have a “well-founded fear of persecution” on return to their own country. [Mr A] clearly has no such fear and is not a person to whom Australia owes protection obligations in my opinion.

20. Under paragraph (aa) of section 36(2) a person must be at real risk of suffering “significant harm”, as that term is defined. [Mr A] is not at risk of any significant harm should he return to Vietnam in my opinion.

21. Finally, I note that the DFAT Country Information Report on Vietnam (13 December 2019) does not suggest that [Mr A] would face significant harm as a failed asylum seeker: see [5.24] to  [5.35]. I note that this was not advanced by [Mr A] as a ground for protection in any event.

    FORMAL DECISION

22. The Tribunal affirms the decision under review.

    Dr N Manetta
    Senior Member