1815112 (Refugee)

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1815112 (Refugee) [2024] AATA 1403 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Quan Do (MARN: 1577384)

CASE NUMBER:  1815112

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Gregory Hanson

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 3:00pm

LEGISLATION

Migration Act 1958, ss 5, 36, 351, 415, 417, 499

Migration Regulations 1994, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Socialist Republic of Viet Nam (Vietnam), applied for the visa on 13 June 2017. On 9 May 2018, a delegate refused to grant the visa on the basis that, firstly, the applicant did not meet the refugee criteria in s 36(2)(a) because there were effective protection measures are available to the applicant in their receiving country for s 5J(2) of the Act. Secondly, the delegate found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) because the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm in Vietnam.

  3. On 24 May 2018, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision.

  4. The applicant was represented by legal practitioner and Registered Migration Agent, Mr Quan Do.

    CRITERIA FOR A PROTECTION VISA

  5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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.

  6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

  7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution,…

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Details
Case
[2024] AATA 1403
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to fear harm from gangsters in Vietnam to whom she owed a significant debt. The applicant's child is an Australian citizen. The Tribunal affirmed the decision not to grant the applicant a protection visa.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also considered the meaning of "significant harm" as defined in section 36(2A) and the circumstances under which a person would not be taken to face a real risk of such harm, as outlined in section 36(2B).

The Tribunal noted that while the applicant had provided some information regarding her financial difficulties and the threats made by gangsters to her mother's business and family, this information was considered insufficient to establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal applied the principles outlined in Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines. Despite affirming the decision not to grant the visa, the Tribunal found that there were strong compassionate circumstances involving serious, ongoing, and irreversible harm and continuing hardship to the applicant and her Australian citizen child, constituting compelling and exceptional circumstances that warranted referral for ministerial intervention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Following the above, consistent with the above-referred guidelines, there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant and the applicant’s Australian citizen minor child. This matter involves compelling and exceptional circumstances and should be referred to the Minister.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Gregory HansonMemberATTACHMENT - 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

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 Department The information provided by the applicant to the delegate in support of her claims to engage Australia’s protection obligations was limited to that contained her protection visa application lodged with the Department on 13 June 2017. Included with her protection visa application was a statutory declaration dated 6 June 2017 prepared by the applicant in which she claimed their reasons for fearing harm on return to Vietnam were as follows:a.At the beginning of 2010 the applicant’s mother helped the applicant to apply to study in Australia. The applicant borrowed the money from her mother who had borrowed the money from relatives. b.The applicant’s mother had to work very hard to support the applicant because she divorced the applicant’s father when the applicant was young.c.In 2014 the applicant’s mother’s business began to have problems and was later declared bankrupt. The applicant’s mother was no longer able to repay the loan to her relatives. d.In 2014, the applicant’s visa was due to expire but the applicant was unable to obtain financial support from her mother. The applicant borrowed $15,000 dollars with high interest from a group of gangsters in Vietnam because her family’s “poession [sic] value was not sufficient to give the bank as security”. e.At that time the applicant borrowed the money she was in a relationship with a man who then borrowed the money from the applicant for his personal use. The applicant’s relationship with this former partner broke down and subsequently this individual refused to return or pay back the money to the applicant. This former partner was addicted to gambling and the applicant assumes that this is what he spent the money on and why he could not pay her back.f.The applicant did not have the money needed to extend her visa or pay back the large amount of money. The applicant could only pay back monthly interest, which increased yearly. The applicant’s mother was stressed with their bank debt and their relatives could not help them anymore.g.The group of gangsters who the applicant borrowed money from attended the applicant’s mother’s [shop] in Vietnam and caused a lot of trouble. The most significant incident occurred in the middle of 2016 which left the applicant’s mother no choice but to close her [business]. The gangsters came to her mother’s shop and used her [services] without paying before destroying that equipment, including televisions, tables and chairs. The gangsters threatened the applicant’s mother with violence. h.They could not report the matter to the police because the gangsters threatened they would ruin the business, and that if my mother reported them to the police they would come back and cause more trouble to her family, including destroying the family home. i.The gangsters said they would keep coming to their family home and the [shop] until the applicant came back to Vietnam and paid them the money by any means or otherwise they would kill the applicant. j.These people made threats in-person when they came to the shop, and they also called and sent messages to the applicant’s mother. The applicant will confirm whether her mother still has these messages on her phone. k.The applicant is very regretful because at the time she borrowed the money she did not foresee the gangsters destroying the family [business], preventing her family from making a proper living or threatening to kill and beat them up.l.Additionally, the applicant’s mother owes the applicant’s cousin $15,000 and the bank $30,000, and her mother makes repayments every month.m.The applicant believes that if she returned to Vietnam she would be in danger in all areas of the country because Vietnam is a small country and the gangsters can easily find out where she is and travel to that location.