1806391 (Refugee) - [2024] AATA 2713

1806391 (Refugee) [2024] AATA 2713 (4 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Hoang (MARN: 2015332)
CASE NUMBERS:  1806391; 2011912; 2201324
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Gregory Hanson
DATE:4 April 2024
PLACE OF DECISION:  Melbourne
DECISION 1806391: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
DECISION 2011912: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
DECISION 2201324: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 04 April 2024 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – Viet Tan member – participation in protests – social media activities – Catholic religion – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a combined application for review of decisions made by delegates of the Minister for Home Affairs to refuse to grant [Applicant 1], [Applicant 2]and [Applicant 3]a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Applicant 1, Applicant 2 and Applicant 3 (the applicants) each claim to be citizens of the Socialist Republic of Viet Nam (Vietnam). Applicant 1 and Applicant 2 lodged separate applications for a protection visa on 7 November 2016 and 5 October 2018. Applicant 3 was born in Australia [in] 2019 and is deemed to have made a combined application for a protection visa with Applicant 2 [by] operation of r 2.08(1) in Part 2 of the Migration Regulations 1994 (Cth) (the Regulations).
Delegates refused to grant Applicant 1, Applicant 2 and Applicant 3 a protection visa on 16 February 2018, 15 July 2020 and 13 January 2022 respectively. Those decisions were made on the basis that the delegates were not satisfied the applicants met the refugee criteria in s 36(2)(a) of the Act, the complementary protection criteria in s 36(2)(aa), or family unit criteria in s 36(2).
Applicant 1, Applicant 2 and Applicant 3 applied to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegates’ decisions in respect of them on 9 March 2018, 21 July 2020 and 2 February 2022 respectively.
The applicants were represented by legal practitioner Ms Kate Khanh Hoang of Oxford Law Group (Ms Hoang).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1806391 (Refugee)

Details

AGLC: 1806391 (Refugee) [2024] AATA 2713
Case: [2024] AATA 2713
Decision Date: 4 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa applications of Applicant 1 and Applicant 2, who are citizens of Vietnam. The applicants claimed they would face harm if returned to Vietnam due to their political opinions, specifically their membership and activities with the Viet Tan party, and their Catholic religious beliefs. The AAT was tasked with determining whether the applicants met the criteria for a protection visa, including whether they held political opinions that would place them at risk of persecution in Vietnam, and whether their religious beliefs would similarly expose them to harm.

The Tribunal was required to assess the evidence presented by the applicants, which included extensive documentation of their involvement in Viet Tan activities, such as protests, fundraising, and social media posts critical of the Vietnamese government. The applicants also provided evidence of their Catholic faith and the religious activities of a relative in Vietnam who had participated in protests. The AAT had to consider whether this evidence established substantial grounds for believing that the applicants would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia, in accordance with section 36(2)(aa) of the Migration Act 1958 (Cth). This involved evaluating the credibility of the evidence and the likelihood of the Vietnamese government taking adverse action against the applicants based on their political affiliations and religious practices.

The Tribunal's reasoning focused on the nature and extent of the applicants' engagement with Viet Tan and their religious activities, and how these might be perceived by the Vietnamese government. It considered Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information from the Department of Foreign Affairs and Trade. The Tribunal noted that the delegate had refused the initial applications without providing an opportunity for an interview or further submissions. Ultimately, the Tribunal found that the evidence presented, particularly the extensive documentation of their involvement with Viet Tan and their religious activities, warranted further consideration. The Tribunal remitted the decisions to the delegate for reconsideration, indicating that the applicants' claims required a more thorough assessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 20 March 2024, Ms Hoang submitted an ‘evidence booklet’ in support of Applicant 1 and Applicant 2’s claims to engage Australia’s protection obligations (Applicant 1 Evidence Booklet and Applicant 2 Evidence Booklet respectively). On 22 March 2024, Ms Hoang provided to the Tribunal written submissions dated 20 March 2024 (Pre-hearing submissions) and copies of statutory declarations by Applicant 1 (Applicant 1 statement) and Applicant 2 (Applicant 2 statement) both sworn on 21 March 2024. The Applicant 1 Evidence Booklet contains approximately 83 pages of material including the following:a.Copies of photographs purporting to depict Applicant 1 and Applicant 2 at various Viet Tan related events in different parts of Australia (including Melbourne, Sydney, Adelaide, Gold Coast and Canberra), between 2018 and 2024, including of them participating in: i.public protests against the Vietnams government relating to different issues; ii.fundraising activities for Viet Tan; andiii.national Viet Tan conferences;iv.other related community events.b.Copies of screenshots of video content purporting to depict Applicant 1 making public statements on social media critical of the Vietnamese government.c.Other content including that purporting to be copies of content published on [deleted], the Viet Tan official website and the Viet Tan Australian chapter [social media] page, referring to and depicting Applicant 1 and Applicant 2 being critical of the Vietnamese government and supporting Viet Tan.d.Copies of photographs purporting to depict Applicant 1 engaging in conduct related to his membership as a Viet Tan member (including ceremonies).e.Copies of screenshots purporting to be of [social media] posts made by Applicant 1 in his capacity as [a member] of the Australian Viet Tan chapter [social media] Page ‘Thân Hữu Việt Tân Úc Châu’.f.Copies of screenshots purporting to be of [social media] posts made by Applicant 1 between 2018 and 2023 using his personal [social media] profile, relating to Viet Tan and issues critical of the Vietnamese government more generally.g.A letter addressed to the Tribunal purporting to have been written by [Mr B], representative of the Viet Tan Australian Chapter, [in] May 2023, in which the author attests to Applicant 1 and Applicant 2’s membership and involvement with Viet Tan, their relationship, and the risk of harm they would face if they returned to Vietnam.h.A copy of a content purporting to be from a Vietnamese government webpage listing [Mr B] (author of the above-referred letter) as a member of a terrorist organisation and listing his position in the organisation as ‘Member of the Central Committee “Viet Tan”’.i.Copies of social media content purporting to relate to Applicant 1’s [relative] who is a Catholic priest in Vietnam, depicting the [relative] at various public events in his capacity as a Catholic priest.j.Copies of identity documents purporting to have been issued to the above-referred [relative] who is a Catholic priest in Vietnam.k.Copies of photographs purporting to depict Applicant 1’s [relative] attending public protest events in Vietnam in his capacity as a Catholic priest.l.Copies of content published on the Viet Tan official website purporting to depict Applicant 1’s [relative] in Vietnam attending public protests in his capacity as a Catholic priest.m.A copy of a letter addressed to ‘Whom it May Concern’ from [named Reverend] of [a] Catholic Church in [Victoria], confirming Applicant 1 and Applicant 2: participated in the Seminar Course preparing for marriage at his parish in 2018; attend Sunday mass at his church “from time to time”; and are honest people.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCEBefore the delegateApplicant 1 The information provided by Applicant 1 to the delegate in support of his claims to engage Australia’s protection obligations was limited to that contained in the protection visa application form lodged with the Department on 7 November 2016. Relevantly, in that form it is recorded that Applicant 1 claimed as follows, among other things:a.He wanted to leave Vietnam because he and his family don't like the current Vietnamese government. He applied for a student visa for Australia. After living in Australia, he appreciated more of the democratic beliefs and the human rights that every Australia citizen here acquires. b.When he was in Vietnam, he could see the injustice and the authority of the Government officials made decision to take away their places of prayers. The Government confiscated homes for their prayers and developed them into tourist places. Their voice and opinions as Catholic believers are supressed in Vietnam. c.He often participated in protests against the atrocity of the Communist government. On many occasions, amongst other students and professional workers, he was detained for 5 weeks after participating in the protest. He was told by the police who arrested him that he would be summoned one day to the court for his participation in protesting against the government. The delegate refused the visa application without providing Applicant 1 with an opportunity to attend a protection visa interview or otherwise inviting further information from him.Applicant 2 In her protection visa application lodged on 5 October 2018, Applicant 2 claimed as follows:a.She left Vietnam to study abroad in Australia because Australia is a well known democratic country that respects freedom of speech, expression and religious beliefs. It was also at the request of her parents because they feared that the religious activities and demonstrations she was participating in with her catholic friends would get her into trouble with the Vietnamese Government.b.She believes that if she is returned to Vietnam, she will be arrested and detained. This is due to her religious belief and her desire for a reformed and democratic Vietnam. She have always held these values because she was raised in a Catholic household, where she was taught about the need for freedom of expression and religion because there was always religious repression by the Vietnamese Government towards the catholic community. c.Her values grew stronger after living in Australia because she got to witness for herself the stark differences between Australia and Vietnam in their rule of law and basic human rights.d.In Australia, she has continued to exercise her beliefs and values by participating in events and gatherings held by the local Catholic community. She could express herself freely without the fear of getting arrested and locked up without any justification. e.She strongly follows the ideals of Viet Tan (Vietnamese Reform Revolutionary Party) in their aims to create a democratic and reformed Vietnam. They strived to do so through peaceful and political means, but the Vietnamese Government considers them a threat to their control over the country. f.She fears that if she continues to practice her religion and express her desire for a reformed Vietnam while in that country, she will be arrested, detained and treated harshly.