1810047 (Refugee) - [2018] AATA 4313

1810047 (Refugee) [2018] AATA 4313 (14 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810047
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Nicole Burns
DATE:14 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 August 2018 at 11:37am
CATCHWORDS
Refugee – protection Visa –Vietnam – religion – catholic – membership of a particular social group – people who has exited the country unlawfully – failed asylum seeker – applicant failed to attend departmental interview – political opinion – anti-government political opinion – participation in anti-China protests – criminal record in Australia –inconsistent evidence provided – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 45AA, 65, 91, 197A, 499
Migration Regulations 1994, r.2.08F, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 17 July 2013 and the delegate refused to grant the visa on 15 October 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant appeared (via video [link]) before the Tribunal on 14 June 2018 and 3 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent. She attended the hearings.
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 Migration Regulations 1994 (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, the applicant 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.
Section 36(2)(a) provides that a criterion for a protection visa…

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 1810047 (Refugee)

Details

AGLC: 1810047 (Refugee) [2018] AATA 4313
Case: [2018] AATA 4313
Decision Date: 14 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, a national of Vietnam, claimed he feared persecution in his home country due to his anti-government political opinions and his Catholic religion. The dispute arose when the delegate of the Department of Immigration and Border Protection was not satisfied with the applicant's claims and rejected his visa application, a decision the applicant sought to have reviewed by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution for reasons of his political opinion or membership of a particular social group, and whether he held a genuine religious belief that would place him at risk of persecution. The Tribunal was required to assess the credibility of the applicant's claims, considering the evidence presented, including his participation in anti-government protests, his alleged arrests and interrogations, and the harassment of his family by Vietnamese authorities. The Tribunal also had to consider the applicant's unlawful exit from Vietnam and his subsequent failure to attend an interview with the delegate.

The Tribunal found that while the applicant was a national of Vietnam and a Catholic, his claims of persecution were not sufficiently substantiated. The Tribunal noted inconsistencies and changes in the applicant's account of events over time, leading to credibility concerns. Specifically, the Tribunal was not satisfied that the applicant's involvement in protests, as described, would lead to a well-founded fear of persecution for his political opinion. Furthermore, while acknowledging his religious belief, the Tribunal found the evidence of discrimination or persecution based on his Catholicism to be insufficient to meet the threshold for a protection visa. The Tribunal also considered the applicant's status as someone who had unlawfully exited Vietnam, but ultimately found that the evidence did not establish a well-founded fear of persecution on this basis or any other claimed ground.

Consequently, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant arrived in Australia by boat on 8 April 2013 without any identity documents. Subsequently he produced to the Department copies of his Vietnamese national identity card (NIC), family registration booklet (ho khau) and his marriage certificate, however due to their poor quality the delegate placed no weight on them. The delegate accepted the applicant was Vietnamese but was not satisfied as to the applicant’s identity and claimed date of birth. On review the applicant has submitted (clearer) copies of his NIC, ho khau and provided the originals at hearing. On this basis the Tribunal accepts he is a national of Vietnam and has assessed his protection claims accordingly.Claims and evidence The applicant is [an age] year old married man from Nghe An province in north central Vietnam who claims to fear persecution in his home country on the basis of his anti-government political opinion and Catholic religion. The applicant set out his initial protection claims in a typed statement that accompanied his visa application dated 11 July 2013, claiming he faces persecution in Vietnam for the following reasons:·He left Vietnam because he feared arrest because of his involvement in anti-government protests and because he is a Catholic in a communist country.·On or about 30 September 2010 he joined a friend – [Mr A] – to a trip to Hanoi. There, [in] October 2010, they attended a protest in Hanoi against the government’s decision to relinquish Hoang Sa Island to China and for religious freedom. Police arrived and started hitting protesters, including the applicant. Many people were arrested.·The applicant escaped and returned to his home village on that day. The Vietnamese government announced on the radio and television that anyone involved in the protest would be located and detained. ·[Mr A] was held in custody and the applicant is afraid his information will be released to the authorities.·The applicant did not stay home for too long and made sure he did not have any pattern of movements. He organised to return to [Country 1]. ·He fears he will be arrested at the airport and detained if he returns to Vietnam because of his involvement against the government in October 2010; the subsequent threats from the government over the radio and television; his membership of a particular social group of someone who has exited the country unlawfully; and practice of his Christian faith. The applicant did not attend an interview with the delegate to discuss his claims, despite being invited to do so, because his then migration agent was unable to locate him. As a result the delegate was unable to be satisfied of the applicant’s claims and rejected them. On review, the applicant provided a statutory declaration to the Tribunal dated 12 June 2018 in which he expands upon his claims, changes some aspects of his claims, and provides new claims, summarised as follows:·The applicant participated in several demonstrations against China’s acquisition (and the Vietnamese government’s acquiescence) of Hoang Sa (Parcel) Islands and the Vietnamese government’s ill-treatment of Catholics which were held every Sunday from [June] 2011 to [August] 2011 in Hanoi.·The applicant was arrested twice: once at a demonstration he attended [in] June 2011 and again on [another date] June 2011. Both times he was interrogated, beaten then released after a few hours because of insufficient evidence.·The applicant’s wife’s cousin – [Mr B] – was also arrested twice ([in] July 2011 in Hanoi and [in] August 2011). He was member of the Viet Than Party who opposes the current government. Whilst the applicant was not a member, he ‘partially supported the ideals of this party, given they felt the same way about the Vietnamese government’s behaviour towards situations such as the Parcel Islands.’·The applicant went into hiding [in] August 2011 after [Mr B] was arrested until he left Vietnam permanently in 2013. He stayed with his aunt who lived [about] 10 kilometres away from their [home]. He returned to see his family [in] December 2012 and the authorities attended his house: the applicant escaped through the back door. ·The Vietnamese authorities have persistently attempted to locate the applicant, by visiting his home and harassing and interrogating his wife. The last time they contacted his wife was in November 2017.·In 2011 his wife’s family attended court to show their support to a group of Catholic youths who had been arrested and charged; some members of his wife’s family and his friend’s mother were also arrested; the authorities have threatened to detain his wife and his father-in-law’s sister; he believes his wife is being threatened because of his participation in the demonstration because his identity as an opponent to the Vietnamese authorities is known to them.·Further, his wife has expressed her views about the Vietnamese governments land policies and complicity in crimes and has been exposed to further threats and harassment by the authorities. He believes she is being targeted because of his involvement in the public demonstrations. ·He is a Catholic in a predominantly Buddhist country.·When he was in Vietnam churches in his village were purposely burnt down by unknown individuals.·The applicant experienced discrimination as a Catholic including being fired by his employer [when] it was discovered that he was Catholic. ·He fears he will face difficulty finding employment in Vietnam because he cannot work on his family’s farm because it is known to the authorities. It will be difficult to obtain employment elsewhere if he does not conceal his religious belief. It will also be difficult to hold a job because he would have to go into hiding again to ensure he will not again be detained by the authorities. ·He also believes he will be persecuted by the Buddhist population in Vietnam as a Catholic, who have been targeted in Vietnam.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Protection visa.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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