1812865 (Refugee) - [2024] AATA 2161

1812865 (Refugee) [2024] AATA 2161 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Lan Hoang (MARN: 1685874)
CASE NUMBER:  1812865
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Catherine Wall
DATE:6 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2024 at 4:31pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – fears discrimination and hostility – became pregnant to and Australian citizen – fear in regard to debt – single mother – tribunal does not accept that the societal discrimination she may experience amounts to significant harm – an Australian citizen daughter – unique and exceptional circumstances – best interest of daughter – referral for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91, 351, 499
Migration Regulations 1994, Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
SZSPT v MIBP [2014] FCA 1245
MZAAJ v MIBP [2015] FCA 478
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 Home Affairs on 24 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age] year old citizen of Vietnam. She arrived in Australia on [date] August 2013 on a student visa and applied for protection on 31 October 2016.
The applicant stated in her visa application that she sought protection because she had a child to an Australian citizen who abandoned her when she was pregnant and she fears discrimination and hostility if she returns to Vietnam as an unmarried mother.
The delegate refused to grant the visa on the basis that the discrimination she faces as an unmarried mother is most likely to take the form of exclusion and neglect rather than aggression, therefore neither she nor her child are at risk of harm from the authorities or the broader society. The delegate was also satisfied that the applicant could access government services and obtain support from relevant community organisations. The applicant applied for review of that decision on 4 May 2018.
The applicant attended a Tribunal hearing on 12 February 2024. She was represented at the hearing by Ms Lan Hoang. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages. I was satisfied that the applicant was able to communicate effectively in the hearing.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in her protection visa application are as follows:
I came to Australia in 2013 to study and in 2015 I fell pregnant to a…

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 1812865 (Refugee)

Details

AGLC: 1812865 (Refugee) [2024] AATA 2161
Case: [2024] AATA 2161
Decision Date: 6 March 2024

CaseChat Overview and Summary

The applicant, a national of Vietnam, sought a protection visa. The dispute arose because the Tribunal affirmed a prior decision to refuse her visa application. The applicant had travelled to Australia to study, met an Australian citizen, and became pregnant. Her partner left her upon learning of the pregnancy, and her student visa was subsequently cancelled. She gave birth to a daughter, who later obtained Australian citizenship. The applicant claimed she feared returning to Vietnam due to potential discrimination as a single mother and the societal attitudes her daughter might face, as well as concerns about debt.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution or a real risk of suffering significant harm if returned to Vietnam. This involved assessing whether any claimed risks were faced by the population generally, and whether the applicant's circumstances presented unique or exceptional factors that warranted consideration beyond general population risks. The court also considered the best interests of the applicant's Australian citizen daughter.

The Tribunal found the applicant's evidence to be consistent and credible, accepting her account of her arrival in Australia, her relationship with her former partner, and the necessity of legal action to secure her daughter's citizenship. However, the Tribunal concluded that the societal discrimination the applicant feared was faced by the population generally in Vietnam and was not a risk faced by her personally, thus not meeting the threshold for significant harm under section 36(2B)(c) of the Migration Act 1958. The Tribunal also noted that the applicant did not satisfy the criteria under section 36(2) as a member of the same family unit as a person holding a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant's claims regarding debt and the best interests of her daughter were not sufficient to overcome the finding that she did not meet the statutory criteria for protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Prior to the hearing the Tribunal received a submission from the applicant’s representative which included:oA statutory declaration from the review applicantoBirth certificate or [Miss B]oAustralian Citizenship Certificate for [Miss B]oA letter from [Miss B]’s schooloA certificate of achievement from [Miss B]’s schoolo[Miss B]’s school reports x 6oLetters of support from [Ms C and other friends].Evidence at the hearingBackground information The applicant said that she was born in Quang Binh province, Vietnam. Her parents are living and she has one older sister and two brothers, all living in Vietnam. She left school at the age of [age] years and completed a [qualification] and worked part time while studying. In 2013, at the age of [age] years, she travelled to Australia to [study]. Her plan was to do one year of English language followed by a 4 year degree course. She met [Mr A] about 6 months after arriving in Australia and they started living together in July 2014. When she found that she was pregnant in late 2015, [Mr A] left her and never came back. She later discovered that he went to Vietnam to marry another woman and sponsor her for a partner visa. The applicant said that she found herself pregnant, without accommodation and unable to study. She started working at a [workplace] and survived with help from friends and work colleagues. Her baby, [Miss B], was born on [date] and 8 days later her student visa was cancelled. The applicant’s representative, Ms Hoang, has acted pro bono for the applicant for several years. She assisted her to make application to the Federal Circuit Court of Australia to have [Mr A] recognised as [Miss B]’s father and to enable [Miss B] to obtain Australian citizenship. This process took considerable time and [Miss B] was granted citizenship on 28 May 2021. The applicant said that she currently works full-time at a [workplace] and supports herself and her daughter. She said that [Miss B] is doing well at school and they have made a good life here with the support of friends. Neither she nor her daughter want to return to Vietnam. When asked about her parents’ response to her pregnancy and single mother status, the applicant said that they were sad about what had happened to her. They maintain regular contact with the applicant but cannot financially help her as they are poor. She said that they mortgaged their land to obtain a loan of 600,000,000 VND[1] from the bank to support her studies in Australia. Family and friends in Vietnam also contributed funds for her study. Her parents are gradually repaying the loan and have extended the term of the loan several times. [1] Equivalent to approximately $37,500 AUD at current conversion rates. I asked the applicant why she is unwilling to return to Vietnam. She told me that [Miss B] has settled in well here and will not adjust to living in Vietnam as she is not fluent in Vietnamese and has never lived in the country. She said that she will face discrimination as a single mother and that [Miss B] will be hurt by the attitudes and rumours of society because she has no father. She also said that boys are preferred over girls 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.Catherine WallMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s36(2)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or provinceMandatory 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The current Department of Foreign Affairs and Trade (DFAT) report is the DFAT Country Information Report Vietnam dated 11 January 2022.ASSESSMENT Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[12]Identity[12] (1999) 197 CLR 510. The applicant’s nationality is not an issue. She travelled to Australia on a valid Vietnamese passport and has consistently stated in documentation that she is a national of Vietnam. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Vietnam and I have assessed her claims against Vietnam as her receiving country.Does the applicant meet the refugee criteria? I found the applicant’s evidence to be consistent and credible. She answered questions thoughtfully and I acknowledge her honesty in relation to her continuing relationship with her family in Vietnam and her confirmation that she expects to be able to secure employment if she returns to Vietnam. I accept that the applicant travelled to Australia with a genuine intention to study and that she was engaged in her studies until she became pregnant to and Australian citizen. I accept that the applicant’s former partner left her when he learnt that she was pregnant and that it was necessary for her to seek legal redress so that her daughter [Miss B] could be granted Australian citizenship.