1814077 (Refugee) - [2023] AATA 729

1814077 (Refugee) [2023] AATA 729 (10 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Khanh Hoang (MARN: 2015332)
CASE NUMBER:  1814077
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Senior Member G. A. F. Connolly
DATE:10 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision of the Department to refuse the grant of a protection visa and remits the matter with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(c)(i) of the Migration Act, because of membership of the same family unit as the first named applicant.

Statement made on 10 February 2023 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – member of opposition party Viet Tan – active participation in Viet Tan activities – birth of children in Australia – births not registered in Vietnam – relevant to exercise of Crown’s executive power – non-Australian citizen children born within Australian Crown’s realm – known no other country than Australia – face threats with removal from Australia – Crown’s rights and duties enlivened – applicant and children face high likelihood of significant harm if returned – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
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 an application for review of a decision made by a delegate of the Minister in what was the Department of Immigration and Border Protection (Department) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
The primary applicant (the applicant) is a wife and mother, aged [age] years, born in Vietnam and a citizen of Vietnam. Her husband, [named], aged [age], was also born in Vietnam and he was granted a protection visa by Australia on 03 April 2019. The applicant and her husband have two young children, both born in Australia: a daughter (aged [age]) who is an applicant in this case, and a son (aged [age]), who is not an applicant but whose interests will, obviously, be affected by the fate of his mother’s application. While the parents are Vietnamese citizens, the births in Australia of each of their daughter and their son was never registered with the relevant Vietnamese authorities. Both young children attend or are enrolled to attend [a]Primary School in [Suburb 1], New South Wales.
On 14 November 2013, the applicant was granted a TU-573 student visa.
[In] December 2016, the applicant married her husband at [a Catholic] Church in [Suburb 1].[1]
[1] Statutory Declaration made by [the…

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.

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Details

Case: [2023] AATA 729
Decision Date: 10 February 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Vietnamese national. The applicant claimed she would face significant harm if returned to Vietnam due to her active membership and vigorous social media campaigning for the opposition party, Viet Tan. The dispute centred on whether the applicant had proven she was a person to whom Australia owed protection obligations under the Migration Act. The decision was made by G. A. F. Connolly SM.

The primary legal issue before the court was whether the applicant had established substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to Vietnam, there was a real risk she would suffer significant harm. This required the court to assess the applicant's claims against the statutory definition of "significant harm" and the "real risk" test, which is equivalent to the "real chance" test for well-founded fear under the Migration Act. A further consideration involved the status and welfare of the applicant's two children, who were born in Australia but whose births were not registered in Vietnam.

The court found that the applicant had proven her case to the comfortable satisfaction of the Tribunal. Evidence from a local Viet Tan leader indicated that the applicant's active involvement, including participation in protests and social media campaigns against the Vietnamese communist regime, meant she would face the certainty of arrest and imprisonment if returned to Vietnam. The court also considered the unique circumstances of the applicant's children, who had known no country other than Australia and whose unregistered births meant they would face an extraordinarily difficult existence in Vietnam. The court reasoned that the Crown's rights and duties, particularly in relation to the welfare of vulnerable persons within its realm, were enlivened in this situation, necessitating a just and protective approach.

The decision under review was remitted with directions and recommendations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits.CONSIDERATION OF CLAIMS, EVIDENCE, AND FINDINGS In considering whether there is a real risk that any applicant or applicants will, indeed, suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to a foreign country, the Tribunal notes that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in relation to the “refugee” criterion: s 36(2)(aa) of the Migration Act. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that the claim is made for the reason(s) stated. Similarly, just because an applicant claims she or he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. At all times, it is the duty of the applicant or applicants to satisfy the Tribunal that all statutory elements of their claim(s) are made out by their case. A decision-maker cannot make the applicant’s case for them. It is the responsibility of an applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that 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.[25] Nor is the Tribunal required to accept uncritically any allegations made or history narrated by an applicant.[26] Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out.[27] It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee.[28][25] Migration Act, s 5AAA.[26] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; MIEA v Guo (1997) 191 CLR 559 at 596 per Kirby J.[27] Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348].[28] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ. The issue in this case is whether the applicant has proved that she has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm: s 36(2)(aa) of the Migration Act. 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. The issue before the Tribunal in this case is whether the applicant is a person to whom Australia owes protection obligations. For the reasons that follow, the Tribunal has concluded that this applicant has proved her case and that she is owed protection obligations by Australia.Viet Tan

Decision

Reasons for decision

The local Viet Tan leader, [Mr A], gave oral evidence to the Tribunal in support of the applicant’s case. [Mr A] was born in [year] and arrived in Australia as a refugee [in] 1982. [Mr A] actively recruits members for Viet Tan from among the local expatriate Vietnamese community. [Mr A] said that the applicant and her husband had been coming to Viet Tan events since 2016 but that he first properly met the applicant and her husband in May 2018, after which he quickly agreed that they should both apply to join Viet Tan. [Mr A] was at pains to stress that a probation period was imposed by Viet Tan to allow for vetting of the applicant and her husband, as the Vietnamese communist regime was known to try to infiltrate informers and spies into the Viet Tan movement abroad. Even so, the applicant and her husband were granted membership by November 2018. [Mr A] said that the applicant and her husband were regular participants in the protests by Viet Tan against the Vietnamese communist regime and propagation of the Viet Tan message. The applicant, [Mr A] said in his evidence, ran a vigorous social media campaign both for Viet Tan and against the Vietnamese communist regime. [Mr A]’s evidence was that the applicant, like any member of Viet Tan, would, if she returned to Vietnam, face the certainty of being arrested by the Vietnamese authorities. [Mr A] also expressed his great concern that if the applicant did return to Vietnam, then she would be immediately imprisoned and lose custody of her two children, potentially forever. [Mr A] noted that insofar as the applicant had been living outside Vietnam for some time, and that her two children’s births in Australia have never been registered with the Vietnamese authorities, the two young children did not exist for the purposes of the Vietnamese communist regime. Accordingly, both of these young children would face an extraordinarily difficult existence in Vietnam and, in particular, would struggle to ever be enrolled in Vietnamese schools or receive healthcare in Vietnam.Conclusion regarding the Applicant Overall, the applicant proved, to the comfortable satisfaction of the Tribunal, that she was heavily involved in the activities of Viet Tan[57], particularly those activities carried out in the expatriate Vietnamese community in Sydney, but also, via the internet, to aid the Viet Tan campaign throughout the Vietnamese diaspora.[58] In support of her application, the applicant had numerous references from senior officials of Viet Tan in Australia.[59] The images and documentary evidence showing the applicant’s long involvement in Viet Tan and its political activities (including protests) against the Vietnamese government, all speak for themselves.[60] There is no possibility that the applicant would (ever) be viewed with disinterest or objectivity by the Vietnamese communist authorities. Rather, if the applicant was removed to Vietnam, then she would, on any view, be at the mercy of the security apparatus of the Vietnamese communist regime.[57] Statutory Declaration made by [the applicant] on 22 July 2022 at [30]-[39].[58] Applicants’ Political Evidence Bundle, 2016–2022, submitted 22 July 2022.[59] Applicants’ Political Evidence Bundle, 2016–2022, submitted 22 July 2022.[60] Applicants’ Political Evidence Bundle, 2016–2022, submitted 22 July 2022.

Ratio Decidendi

Legal Principle Established

However, the considerations I discuss above are relevant to exercises of the Crown’s executive power, especially where children are born within the Australian Crown’s realm, and they, while not Australian citizens, have known no other country than Australia, and they are threatened with removal from Australia to countries that are, in every sense, ‘foreign’ to them. The Crown’s rights and duties must be enlivened in such a case, particularly where the interests and welfare of children or other vulnerable persons are concerned – and these interests and their welfare will be affected (positively or negatively) by the decisions of an executive decision-maker. While the obligations of the Crown as model litigant and Parens Patriae are not identical, they do overlap by recognising the Crown’s duties to always act justly and to protect those vulnerable persons who are within the Crown’s realm. To restate what must be obvious: the Crown cannot be untrue to itself.MANDATORY CONSIDERATIONS In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not an appeal to any court. The matter before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government. In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task:The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.[24][24] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits.CONSIDERATION OF CLAIMS, EVIDENCE, AND FINDINGS In considering whether there is a real risk that any applicant or applicants will, indeed, suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to a foreign country, the Tribunal notes that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in relation to the “refugee” criterion: s 36(2)(aa) of the Migration Act.