1802590 (Refugee)

[2021] AATA 3658

1802590 (Refugee) [2021] AATA 3658 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1802590

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Senior Member Dr N Manetta

DATE:1 September 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 September 2021 at 5:20pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – returned asylum seeker – economic conditions – medical treatment – employment opportunities – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994 (Cth)

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 [the applicant] a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (the Act).  [The applicant] applied for the visa on 12 July 2017. The delegate decided that [the applicant’s] claims as set out in her written application did not warrant the grant of a protection visa.

2. [The applicant] appeared before the Tribunal on 16 April 2021 to give evidence and make submissions. The Tribunal also received oral evidence from [the applicant’s] sister.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   TRIBUNAL’S TASK

3. Hearing the matter afresh on the evidence before me, I must decide whether [the applicant] meets the criteria for the grant of a protection visa.  The hearing I conduct is known, technically, as a de novo hearing on the merits.  I must reach the correct or preferable decision on the basis of the evidence before me whether or not I can discern any discernible error in the reasons of the delegate. 

   STATEMENT OF CONCLUSION

4. I have decided to affirm the decision under review.  I set out below salient features of the evidence I have received, my critical findings of fact, and the application of the legal regime under the Act.

   EVIDENCE

5. [The applicant] gave evidence before me. On the whole, I accept her evidence, which was measured and truthful. It became clear that there is a complete lack of correspondence between the grounds for the grant of a protection visa as set out in the application form and the oral evidence given by [the applicant].

6. So far as her background is concerned, I note [the applicant] was born in Vietnam on [date] and was, therefore, [age] years of age at the time of the hearing before me. She was born in Hue.  Her mother and father are both alive and were born in [years] respectively. Her father had a stroke some eight years ago, and her mother now stays at home looking after him. [The applicant] has [specified siblings].

7. Her father was [an Occupation 1], and she gave evidence that they were not well off as a family, but on the other hand they were not hungry. They had just enough to survive on, she said. Her brother went on to study at university and became [an Occupation 2]. He works in Hue. All [the other] children, including [the applicant], had to finish school early to allow the brother to study at university.

8. One [sister] lives in Australia. She met a Vietnamese Australian while he was in Vietnam, they became engaged, and he sponsored her migration to Australia as his partner.  The sister has been living in Australia for some 11 years.

9. [The applicant] completed primary schooling in Vietnam to [grade] and then began working in Saigon when she was a teenager. She lived in shared accommodation there. She did a variety of jobs including, as I understood her evidence, [specified roles].  She spent nearly nine years in Saigon doing these jobs, and she would send money back to Hue.  After her years in Saigon, [the applicant] moved back to Hue and sold [a product] from a very small shop. She also looked after her father because, as I have noted, her father had suffered a stroke.

10. She described her life as very difficult because of the family’s financial circumstances.

11. In response to my question about why she came to Australia in 2017, [the applicant] said that she had heard Australia was a good country and was aware that her sister, who had emigrated here, was working hard. [The applicant] has, I note, [a medical] condition that she wished to have treated in Australia. In respect of the latter reason, [the applicant] informed me that she had consulted a doctor in Vietnam who had trained in Australia, and he suggested to her that she should come to Australia, if possible, for superior treatment.

12. [The applicant] has little English. Her first job in Australia after arriving involved farm work.  She has, in general, very little understanding of the procedures associated with migration to Australia or of a protection visa.  She was referred to a woman, whose name she does not recall, who explained to her that there was something called a “refugee visa”. She did not meet this woman. Her [sister] filled in the relevant form for her so far as it required personal details. The balance of the form, which concerns the grounds for the grant of a protection visa, was filled in by someone else.

13. I explained to [the applicant] that the application form states, for example, that she fears discrimination in Vietnam as a [Country 1] woman. Clearly enough, that could not be true in her case. [The applicant] had no knowledge that that was in the form.

14. It is clear to me from the answers that [the applicant] gave to my questions that her fears on returning to Vietnam are twofold.  First, she is concerned about her family’s financial position and having money to support her father’s treatment in hospital if that proves necessary. Secondly, she is concerned that if her [medical] condition were to worsen, there would be no adequate treatment in Vietnam. She says her [condition is] much better now in Australia than [before] in Vietnam and the condition has stabilised since she arrived here. Her doctors here say she does need to keep an eye on [this] condition.

15. [The applicant] also confirmed to me that she does not owe any money in Vietnam and so, to the extent that there are claims in the application form in this regard, the form is inaccurate. Her real reason for wanting to stay in Australia is, she said, to work, send money home and to use her time here for [medical] treatment. There is no fixed date for any [operation], however, as this has not been recommended to her by a doctor here, but she has been told, she said, that she may need to have an operation in the future. Her fervent wish is to be allowed to stay for a period of time in Australia, and save money. She said she believes that she is no longer of marriageable age and, in any event, if she were to marry, she may lose an opportunity to help her parents.

    I heard evidence from [Sister A], who is [the applicant’s] sister living in Australia. [Sister A] gave evidence that she does not understand what a “refugee visa” is and confirmed that her sister provided only personal details in respect of the application form: the balance of the form had been otherwise filled out by someone else. She paid for the pre-filled form. She confirmed that her sister wishes to stay in Australia and send money back home to Vietnam so her father can go to hospital if necessary. 

    CRITICAL FINDINGS OF FACT

16. The oral evidence [the applicant] and her [Sister A], gave was honest and credible.  In terms of my critical findings of fact, I find that the grounds in the application form for the grant of a protection visa had been prepared by someone else in advance and do not reflect the true situation.  It is clear that the application form sold to the [the applicant’s family] was a bogus, pre-filled form.

17. I find that [the applicant] does not fear returning to Vietnam except for two reasons: first, she fears impoverishment because of a poorly paid position that will not allow her to support her family, particularly her ailing father; secondly, she fears that if her [medical] condition substantially worsens she will be deprived of superior treatment that is available in Australia.

    LEGAL REGIME

18. I turn now to apply the legal regime. It is clear from the evidence I received that [the applicant’s] application for a protection visa does not satisfy the criteria set out in the Act.  I shall express my views briefly to assist [the applicant] to understand them.

19. In order to be granted a protection visa, [the applicant] must satisfy either paragraph (a) or paragraph (aa) of section 36(2) of the Act.

20. Paragraph (a) is concerned with protection obligations Australia owes to international arrivals. In this regard, I note that [the applicant] does not have any “well-founded fear of persecution” as set out in section 5J of the Act. I do not believe that [the applicant’s] access to inferior health treatment (when compared with the treatment she presently receives in Australia) is a form of persecution. I do not believe that [the applicant’s] superior earning capacity in Australia allows me to conclude that her return to Vietnam would result in a form of persecution.

21. Paragraph (aa) is concerned with protection visas to be granted to those who do not satisfy paragraph (a). I must be satisfied that on [the applicant’s] return to Vietnam, there would be a real risk she would suffer significant harm as defined in subsection (2A).  I do not believe that access to inferior health treatment in the circumstances of this case amounts to cruel or inhuman treatment or to degrading treatment or otherwise satisfies the definition of “significant harm”. Nor do I believe that [the applicant’s] poorer economic prospects in Vietnam’s amount to cruel or inhuman treatment or degrading treatment or otherwise satisfy the definition of “significant harm”.

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

23. I wish to point out expressly that I have considerable sympathy for [the applicant]. She has experienced a great deal of hardship in her life, and she gave her evidence to me in a commendably straightforward way and was visibly upset at the hearing. She told me plainly that she had decided to tell the truth. She is trying to assist her family and herself.  I can see that, and her determination to help her family is admirable.  It is not part of my jurisdiction, however, to make decisions about who would, and who would not be, suitable applicants for settlement in Australia. Rather, as I explained to [the applicant] at the hearing, I must decide solely whether [the applicant] meets the criteria prescribed in the Act for a protection visa. For the reasons given, I have decided that [the applicant] does not meet these criteria.

    FORMAL DECISION

24. I shall affirm the decision under review.

    Dr N Manetta
    

    Senior Member