1803178 (Refugee)

[2022] AATA 2221

1803178 (Refugee) [2022] AATA 2221 (18 May 2022)

DECISION RECORD

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – fear of detention – Australian citizen children – internal relocation – decision under review affirmed

LEGISLATION

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

CASES

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

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.On 6 February 2018 the applicant [named] was refused a protection visa. The applicant applied for visa on 8 June 2017. The applicant first came to Australia as an international student. The applicant’s identity and nationality are not in contention in this matter. She is a Vietnamese citizen and has provided a copy of her Vietnamese passport. There is no evidence presently before the Tribunal that the applicant has a current right to enter a third country. Accordingly, s.36(3) of the Act does not apply.

2.The applicant’s protection claims and associated evidence, provided up until the refusal decision, are found in department case file [number]. The claims can be broadly summarized as follows. The applicant says she has [Australian] citizen children from a former relationship with an Australian. The applicant has been vocal in her anti-Vietnamese communist party views and criticize of their human rights record. The applicant advances the view officials in Vietnam are dictatorial, selfish, corrupt and profit from their positions. The applicant has been openly vocal about her views with friends and within the Vietnamese community, though the applicant claims she thought her actions were anonymous until her father contacted her and advised her life was in danger. The applicant’s father told her the Vietnamese authorities had been to his house (in Vietnam) and informed him of the applicant’s anti-government views. The applicant fears returning to Vietnam and believes she will be arrested and interrogated with respect to her political views and opinions. The applicant says she cannot move to another province, as she believes she will be arrested upon arrival into Vietnam.

3.For the record, no additional evidence (or argument/s) have been provided to this Tribunal by the applicant (AAT reference/case no. 1803178 and associated electronic case file).

4.As the Tribunal has been unable to make a favorable decision on the material before it alone, it invited the applicant to a hearing (scheduled for 17 May 2022) to examine her protection claims.

5.On the day prior to the AAT hearing (16 May 2022), the applicant’s legal representative advised the Tribunal by email: “The applicant requests a decision to be made in this matter on the papers”.

Analysis – credibility of claims

6.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.

7.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 is 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…”.

8.The applicant’s protections claim(s) (in totality) are contained at folios 7-10 in the departmental file cited above. They are completely unanswered, except for question 88 (“Vietnam”), which the applicant identifies as the country she seeks protection in Australia from. In respect to her protection claims, the application form is blank, except for handwriting at the top of page 87 (folio 10) which states “Please refer to statement”. At folios 3-4 (of the Department file) a two-page statement of claims is provided. That statement is affixed hereto.

Findings on Facts on relevant matters

9.The total absence on any supportive evidence, oral or documentary advanced by the applicant or her representative, combined with the paucity of the original claims as set out in her statement (as part of her protection application) is entirely insufficient and inadequate to enable the Tribunal to reasonably establish the relevant facts.

10.The Tribunal has considered the claims, lacking in any detail such as dates, times, places, or corroboration of any kind, and finds that when viewed cumulatively the Tribunal is unable to reasonably accept any of the applicant’s claims. The applicant was provided with the opportunity to discuss, or expand upon, her claims but declined the Tribunal’s invitation to a hearing as part of the review.

1. In the above circumstances, the Tribunal has no alternative but to

   reject all the applicant’s protection claims,

12.Given the above, the Tribunal finds the applicant will not suffer any harm for any reason in the foreseeable future should she be returned to Vietnam. Based on the Tribunal’s findings above there is no reason the applicant would have the subjective fear of being harmed in the foreseeable future contemplated in s.5J(1)(a). It follows, the Tribunal also finds the applicant does not have a real chance of suffering any harm, let alone serious harm, in the foreseeable future and does not meet s.5J(1)(b). Accordingly, the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act, and therefore she does not meet the meaning of ‘refugee’ set out in s.5H of the Act.

13.For the reason outlined above the Tribunal has not been satisfied the applicant is a person to whom Australia has protection obligations under section 36(2)(a).

14.Having concluded that the applicant does not meet the ‘refugee’ criterion, the Tribunal has considered section 36(2)(aa) of the Act. The Tribunal is not satisfied there are 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 32(2)(aa) of the Act. It follows the Tribunal finds the applicant is not a person in respect to whom Australia has protection obligations.

15.There is no suggestion or evidence that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria section 36(2).

16.Given all the above the Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made 4:11pm 18 May 2022 in Melbourne, N. McGowan.

STATEMENT OF CLAIMS - [The applicant’s name]

1. I am a Vietnamese citizen and I do not have any other citizenships or permanent residences in any other country.

1. I do not have any religion

1. I was born on [date] in Nghe An, Vietnam. My relationship with my ex husband has ended about two years ago due to his drug dependence and I do not know of his whereabouts.

1. I have [Australian] Citizen children to this relationship.

1. If I return to Vietnam, I believe that I will suffer harm because:

-   I have made political opinions against the current Communist Party in Vietnam and have been vocal about their treatment of their own citizens especially in relation to human rights. I have expressed that I find their policies not in tune with contemporary society and that their actions are shellfish, corrupt and demeaning. I also believe that their actions follows that of a dictatorship and all officials tend to only work if they make a profit (personal profit) for their own personal gain.

-   I have been vocal of this aspect and have openly shared my views with my friends and the general Vietnamese Community as a whole.

1. I had thought that my actions will remain anonymous until my father called me and tell me not to return as my life will be in danger. He informed me that the Vietnamese authorities have been to the house and have asked my father about my whereabouts and when I would be returning. My father is very worried and believes that word has come to the authorities that I have been preaching my ideals to the general public.

1. I am now certain that word has come to the Vietnamese Authorities of my opinions towards the Communist as I believe that have no other reason to want to talk to me.

1. I am fearful for my life and believe me that upon my arrival to Vietnam, I would be arrested and interrogate about my comments.

1. I have no where to go in my own country and know that once I land in Vietnam and cleared through custom, they will be there waiting for me at the airport. I believe that I would arrested upon my arrival and taken into for interrogation.

I would not even get the opportunity to find a safe haven.