1815112 (Refugee)
[2024] AATA 1403
•6 March 2024
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
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – purported withdrawal of review application – not a valid withdrawal of the application for review – feared harm from the gangsters that she borrowed money from – applicant has not provided sufficient information regarding her claims to fear harm – applicant’s child is an Australian citizen – unique and exceptional circumstances – best interest of child – referral for ministerial intervention – decision under review affirmed
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
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).
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.
On 24 May 2018, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision.
The applicant was represented by legal practitioner and Registered Migration Agent, Mr Quan Do.
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 (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.
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.
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, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 EVIDENCE
Before 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.
In that statutory declaration, under the heading ‘Delay in lodging Protection visa’ the applicant declared that she felt safer living in Australia so she did not think it was necessary to seek asylum in Australia.
Also provided with her protection visa application was a copy of a biodata page of passport purporting to have been issued to the applicant by the Vietnamese authorities in Vietnam [in] 2007, and several copies of pages from that passport indicating she previously entered Australia and undertook further travel in and out of Australia holding a [student] visa.
The material given by the Secretary of the Department to the Tribunal for the purposes of the review pursuant to s 418(3) of the Act, also included copies of the following documents that had been provided by the applicant to the Department:
a.[Suburb 1] Medical Clinic tax Invoices/statements issued to the applicant in respect of “[p]rofessional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner taking a selective history, examination of the patient [illegible]” conducted on the following dates: 30 June 2017; 24 July 2017; 4 August 2017; 14 September 2017; 6 October 2017; and 12 October 2017;
b.Invoice dated 17 July 2017 issued by [a named] Pathology to the applicant for pathology services;
c.Invoice dated 6 July 2017 issued by [a clinic] to the applicant;
d.Invoice dated 11 August 2017 issued by Radiology Imaging Solutions [Suburb 1] to the applicant; and
e.Residential Tenancies Bond Authority, Bond Lodgment form signed by two parties on 14 August 2017, neither of them being the applicant.
The applicant was not invited to attend an interview with a delegate and no additional material was sought by the delegate or otherwise provided by the applicant in support of her claims prior to the primary decision being made.
Before the Tribunal
On 24 May 2018, the applicant lodged their application for merits review using the Tribunal’s online lodgement system. The applicant provided copies of the following documents with her review application:
a.Correspondence dated 9 May 2018 from the Department to the applicant titled ‘Notification of refusal of application for a Protection (subclass 866) visa’; and
b.Protection Visa Decision Record dated 9 May 2018, being the reasons for the delegate’s decision provided to the applicant.
By email correspondence dated 8 January 2021, the applicant wrote to the Tribunal requesting the Tribunal issue a letter for the purposes of her Medicare card renewal and enclosed documents advising her new residential address.
By email correspondence dated 18 January 2022, the applicant wrote to the Tribunal requesting a further letter for the purposes of her Medicare card renewal and enclosed a scanned copy of the following documents:
a.a copy of a biodata page of passport purporting to have been issued to the applicant by Vietnamese authorities in Perth, Australia, on [date] 2017 (expiry [date] 2027); and
b.a copy of a biodata page of passport purporting to have been issued to the applicant by Vietnamese authorities in Vietnam on [date] 2007 (expiry [date] 2017).
On 10 November 2023, the Tribunal sent email correspondence to the applicant inviting them to complete a ‘Pre-hearing information form’ seeking further information about, among things, their protection claims, and requesting she respond within 7 days. On 17 November 2023, the Tribunal received correspondence from legal practitioner Mr Quan Do advising they had been appointed to act for the applicant and enclosing Tribunal form Appointment of Representative / Appointment of Authorised Recipient – Migration and Refugee Division, appointing Mr Do as the applicant’s authorised recipient for s 441G of the Act and representative. In that correspondence Mr Do sought an extension of time of up to 21 days to respond to the Tribunal’s correspondence. On 20 November 2023, the Tribunal wrote to Mr Do confirming that an extension of time to respond had been granted until 24 November 2023.
On 24 November 2023, the applicant’s representative provided the following material to the Tribunal:
a.A completed Pre-hearing information form signed by the applicant on 21 November 2023, advising:
i.the applicant did not wish to attend a hearing and they consented to the Tribunal making a decision on the papers without inviting them to a hearing; and
ii.in the section ‘Claims for protection’ it refers to an attached statement.
b.Written submissions from the representative dated 24 November 2023; and
c.A statutory declaration affirmed by the applicant on 24 November 2023.
In the representative’s submissions dated 24 November 2023, Mr Do relevantly advises as follows:
a.The applicant had been advised of the requisite legal criteria a protection visa application, and advises that she does not meet the requirements set out in s 36 of the Act for grant of the visa.
b.He is instructed to “withdraw from proceedings before the Tribunal” and respectfully requests that the Tribunal refer the applicant’s matter to the Minister for possible intervention on the grounds and circumstances articulated in her personal statement.
c.The applicant was “misled by her previous legal representative into making substantial payments to him/her for lodgement of a visa application that she was not fully informed of”.
d.The applicant confirms that “she would not knowingly authorize application for the visa if the facts and law were fully presented to her. She conveys her deepest regret and wishes to sincerely apologize to the tribunal for the cost in time, money and inconveniences caused”.
e.In the circumstances and for the best interest of her biological child, Master [A] (date of birth [date]), an Australian citizen by operation of law, [the applicant] requests the Tribunal to formally refer the matter to the Ministerial Intervention Unit to enable her to seek Ministerial Intervention.
The applicant relevantly declares as follows in her statutory declaration affirmed on 24 November 2023:
a.She is living in Australia with her son, [Master A] (date of birth, [date]).
b.She was born and raised in [City 1] Dong Thap Province, Vietnam. She is an only child and her mother is a single mother. Her mother has a [business] in [City 1] city.
c.In 2009, after she had graduated from [a grade], her mother was advised by the applicant’s aunt in Australia about her (the applicant) studying in Australia. Her mother used her savings to help the applicant study in Australia.
d.On arrival in Australia she lived with her aunt and worked at her aunt’s restaurant to earn money to help fund her stay in Australia.
e.From the end of 2013, the applicant’s mother’s [business] had ‘more’ difficulties and her mother borrowed money from a group of high-interest money lenders (known to be gangsters) in [City 1] city, to fund her business; financial losses and to pay the staff salaries. More interest and debt accrued on that loan and the applicant had to work more to fund her living expenses in Australia.
f.She failed some student courses in Australia and in 2013, after she completed her [course], she was no longer able to pay her further tuition fees.
g.Between deciding to stay in Australia and returning to Vietnam, she decided to remain in Australia as she was afraid of the gangsters who her money borrowed money from and that they would do something dangerous to her and her mother. For this reason, when her visa expired she stayed in Australia unlawfully. She lived in fear every day because she didn’t have any legal documents and also feared for her mother who lives alone in Vietnam.
h.In 2016, she was introduced by a third party to a lawyer [who] advised her they could help her stay in Australia and she would no longer need to live in fear. They advised her they could assist her to prepare a protection visa application form for $8,000. She worked very hard to pay the lawyer’s fees and she listened to and followed the lawyer’s advice.
i.After her protection visa was refused the same third party referred her to another lawyer at [Company 1] to assist her with a merits review application before the Tribunal. [Company 1] advised her their fees would be $5,500 but they allowed her to pay $2,000 less because the applicant’s previous lawyer was not good.
j.In 2017 she met her husband, [Mr B] (date of birth, [date]). They commenced a relationship and were later married. Their marriage was registered on [date] November 2017. At that time she was [pregnant] and it was decided that she would apply for a partner visa with [Mr B] as the sponsor.
k.[Mr B]’s family disliked her and they believed she was using [Mr B] to gain residence in Australia. [Mr B]’s family forbid him from being a sponsor for the partner visa. [Mr B]’s father (her father-in-law) contacted [Company 1] to advise them he would sue them if they included any information about [Mr B]’s family in a partner application for her.
l.She was mentally oppressed by [Mr B]’s father when she was 6-7 months pregnant. [Mr B] loved her very much but could not disobey his father and the applicant and [Mr B] often argued.
m.Her partner visa has been dragging on for many years without her father-in-law’s consent. She is afraid that one day her protection visa will be refused and I will have to separate from her husband and son and return to Vietnam.
n.On [date] she gave birth to their son, [A]. Seven months later she returned to work to help [Mr B] pay for family expenses.
o.Her mother owned a plot of land in Can Tho city, Vietnam, as an investment and her mother sold it and sent the proceeds of the sale to her (the applicant) in Australia so she and her husband could buy a property in [Suburb 2], Victoria. They subsequently purchased this property.
p.Her husband is very gentle but short tempered, and is always harsh with her and their son. In early 2020, they were both working for the same employer and when they both got home from work he would not help her look after their child or help with housework. Many times he cursed me and wanted to hit me but luckily he only hit the door. I was very scared and just wanted to run away with my son but I didn’t know where to go because I didn’t have any relatives here.
q.Her relationship with her husband became more and more silent and distant, and he was always angry and raising his voice to her. There were times when he was angry while driving them in the car and he drove very fast without remembering their son was in the car and it was very dangerous.
r.She is very scared that someday her husband will do something dangerous to her and their son.
s.She worked very hard very day to care for her husband and look after his daily needs but she was treated very unfairly by him and his family. She used to dream that after her partner visa is approved she would have a beautiful wedding like other girls but to this day this dream is unfulfilled.
t.Their married life became more and more stressful and they had more and more arguments about food, money and because of work stress.
u.In early 2023, her husband wanted to divorce her and he moved back to live with his family, leaving her and their son alone. On instruction from his father, [Mr B] took possession of the car that she had purchased but which was registered in [Mr B]’s name. She has begged him to return the car but he hasn’t. [Mr B]’s father wants their property sold but the deposit was paid for using the applicant’s mother’s money. [Mr B]’s father has brought a strange man to her property many times to force her to sell the house as soon as possible. They have oppressed her and her son for the past few months and always scared her son.
v.They said she should return to Vietnam soon and leave their son alone. She has been taking care of their son since he was born and he is now[age] years of age. [Mr B] does not care about them and only wants his share of the property when it is sold.
w.She knew she was going down a wrong path when she applied for the protection visa because at that time she had no knowledge and she was told that a protection visa was the only way for her to live legally in Australia.
x.She really hopes that humane Australia can help her stay here to take care of her son. She knows that if my son has to return to live in Vietnam his future will be very unclear due to her family’s circumstances. She really hopes that her son, who is an Australian citizen, will be protected and educated well in a humane and good country like Australia.
On 25 January 2024, the Tribunal wrote to the applicant’s representative as follows:
a.The Tribunal sought confirmation that the applicant consented to the Tribunal deciding the review without the applicant appearing before it at a hearing;
b.The Tribunal advised that if the applicant consented the Tribunal’s decision would be made based on the information and evidence before it, and that it may consider criteria or issues that were not previously considered by the primary decision maker; and
c.The Tribunal noted that it would consider any information received prior to 16 February 2024 provided in support of the application for review of the decision to refuse the applicant a protection visa and/or in support of the request that the Tribunal exercise its discretion to refer the matter to the Minister for consideration under s 417 of the Act.
On 29 January 2024, the representative wrote to the Tribunal by email confirming the applicant's consent for the Tribunal to make a decision on the review without a hearing, and reiterated the applicant’s request the Tribunal refer the matter to the Minister for intervention.
No further material has been provided to the Tribunal by the applicant or on her behalf.
FINDINGS AND REASONS
The Tribunal has regard to all material before it, including that which was before the delegate, all subsequent material provided by the applicant to the Tribunal, and relevant country information.
Valid protection visa application
The Tribunal has considered the claims made on behalf of the applicant by her representative in respect of the lawyer who purportedly assisted the applicant to lodge her protection visa application with the Department, including: she was misled into making substantial payments to him/her for lodgement of a visa application that she was not fully informed of; and she would not knowingly authorise an application for a protection visa if the facts and law were fully presented to her. The Tribunal has also considered the contents of her statutory declaration dated 24 November 2023, including (but not limited to) her claim that this particular lawyer allegedly advised her they could assist her to prepare a protection visa application form for $8,000, and that she worked very hard to pay the lawyer's fees and she listened to and followed the lawyer's advice.
The Tribunal has also had regard to the contents of the protection visa application lodged with the Department and notes the following potential anomalies:
a.the protection visa application form records that no assistance was accessed by the applicant in completing the protection visa application form[1];
b.the protection visa application form records that the Visa Application Charge for the visa application was paid for using a credit card in the name of the principal legal practitioner at the law firm that the applicant claims she accessed assistance from, being [a firm], and which lists a billing address that corresponds with that firm[2];
c.the statutory declaration affirmed by the applicant on 6 June 2017 that was submitted with the protection visa application form (and which the protection visa application form refers to and imports by reference[3]) indicates it was witnessed by the relevant lawyer employed by the above-referred law firm who the applicant claims assisted her for that process.
[1] Form 866 – Application for a protection visa, signed 6 June 2017; Part B, Question 6, page 14.
[2] Form 866 – Application for a protection visa, signed 6 June 2017; Part B, Question 11, page 14.
[3] Form 866 – Application for a protection visa, signed 6 June 2017; Part C, Questions 89-96, pages 36-38.
The Tribunal has had regard to the material before it, including the contents of the protection visa application form lodged with the Department and applicant’s statutory declaration dated 6 June 2017 included. Despite the above issues, the Tribunal finds that the applicant intended to make the protection visa application at that time and that application was not invalid for reason of fraud on the Department. Further, the Tribunal finds that visa application met, and continues to meet, the requisite criteria for a valid protection visa application under the Act and the Regulations, and that it was, and is, not otherwise prevented from being invalid by the terms of the legislation.
Following this, the Tribunal is satisfied that the visa application recorded by the Department as having been lodged by the applicant on 13 June 2017 was at that time, and continues to be, a valid application for a protection visa.
Purported withdrawal of review application
The Tribunal has had regard to the applicant’s written submission attached to his 24 November 2023 correspondence that he was instructed by the applicant to withdraw from proceedings before the Tribunal. However, for the following reasons the Tribunal finds that this was/is not a valid withdrawal of the application for review and that the Tribunal retains its jurisdiction to determine the merits of the application.
The representative’s request to withdraw the review application was accompanied by submissions in support of a request for the Tribunal to consider exercising its discretion to refer the application to the Minister for consideration of the public interest power in s 417 of the Act. This is consistent with other correspondence from the representative on behalf of the applicant requesting the Tribunal to exercise its discretion to refer the matter to the Minister for consideration of their intervention power in s 417.
The Tribunal notes that once a review application is validly withdrawn it no longer exists and cannot be reinstated, and from that point onwards, the Tribunal has no jurisdiction to review the delegate's decision and no power to make a decision on the merits of the claim.[4] In those circumstances, the Minister’s public discretion in s 417 of the Act cannot be enlivened as it requires there to have been a decision by the Tribunal pursuant to s 415 of the Act, and a decision that the Tribunal has no jurisdiction to review an application is not such a decision. Following this, the Tribunal finds on the particular facts of this case that the erroneous understanding of the effect of withdrawing the application on access to the s 417 power that the applicant derived from their representative, amounts to a lack of intention sufficient to render the purported withdrawal of no legal effect.[5]
[4] SZASD v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FMCA 472 at [11].
[5] See Re Faulkner and Repatriation Commission (1990) 21 ALD 633 where the Tribunal found that the applicant’s signing of an agreement by consent clearly showed that the applicant had not abandoned his claim despite the Tribunal’s earlier order for dismissal issued after that agreement, and that dismissal was to be regarded as a nullity.
Following this, the Tribunal is satisfied on the material before it that its jurisdiction to review the primary decision is not disturbed by the purported withdrawal.
Receiving country
The applicant's evidence in relation to her nationality, place of birth, education, family composition, ethnicity, religion and languages spoken, has been consistent throughout her primary and merits review protection visa processes. The applicant has also been consistent in her evidence that she is a national of Vietnam and of no other country, that she was born in Vietnam, and that both of her parents are citizens of Vietnam. The applicant has indicated in writing before the Department and Tribunal that her first language is Vietnamese, the official language of Vietnam[6], and requires an interpreter in the Vietnamese and English languages to communicate orally.
[6] United States Government, Central Intelligence Agency (CIA), The World Factbook, Vietnam, available at: .
The applicant provided to the Department and Tribunal certified copies of the biodata pages of the following passports purporting to have been issued to her by the Vietnamese authorities, and which feature a photograph of a person bearing a true likeness to the applicant including:
a.Passport issued in Vietnam on [date] 2007 (expiry [date] 2017); and
b.Passport issued in Perth, Australia, on [date] 2017 (expiry [date] 2027).
On the evidence before it, the Tribunal finds the applicant is a national of Vietnam and no other country, and that Vietnam is her only receiving country for s 36(2) of the Act.
Protection claims
Before the Department the applicant claimed that in 2010 the applicant was residing in Vietnam and her mother borrowed money from relatives to finance her (the applicant’s) study in Australia. The applicant stated that in 2014, after she had been residing in Australia for some time, the applicant's visa was due to expire but her mother was not able to provide further financial support. The applicant stated that she then secured a loan of “$15,000 dollars with high interest from a group of gangsters in Vietnam”. The applicant further claimed that her partner at that time then used that money to fund his gambling addition, and she did not have the money needed to extend her visa or and could only pay back monthly interest, which increased yearly. The applicant stated that the gangsters in Vietnam who she borrowed from then caused problems for her mother’s [business]. The applicant also stated that her mother received threats by text message from the gangsters and that she would seek confirmation from her mother whether she still has those messages on her phone. The applicant claimed they could not report the matter to the police because the gangsters threatened they would ruin the business if they did and also come back and cause more trouble for her family, including destroying the family home. The applicant claimed that she feared harm on return to Vietnam from the gangsters that she borrowed money from and has been unable to repay.
Before the Tribunal, the applicant claimed in her statutory declaration dated 24 November 2023 that her mother used her own savings to finance the applicant’s study in Australia, and that on arrival in Australia the applicant worked in her aunt’s restaurant to help finance her studies. The applicant then stated that from the end of 2013 her mother’s [business] was having financial difficulties so her mother secured a high interest loan from money lenders in Vietnam known to be gangsters. The applicant stated her mother struggled to make repayments on that loan and she (the applicant) had to work more in Australia to fund her studies. The applicant claimed that she decided to remain in Australia after her student visa ceased because she was afraid that the gangsters who her mother owed money to in Vietnam would do something dangerous to her and her mother.
In her statutory declaration dated 24 November 2023 the applicant also claimed that she is very scared that someday her husband will do something dangerous to her and their son.
Findings and reasons
A decision-maker is not required to make the applicant’s case for him or her[7], nor is that decision-maker required to accept uncritically any and all allegations made by the applicant.[8] The applicant declined to appear before the Tribunal at a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. As such, the Tribunal has not had the opportunity to test the applicant’s claims and evidence, including the discrepancies between the accounts she gave before the Department and that presented to the Tribunal, and more generally. The Tribunal has considered the material before it and finds that the applicant has not provided sufficient information regarding her claims to fear harm in Vietnam. There is insufficient detail in the applicant’s written evidence regarding the exact nature of the harm she fears, whether the harm she fears amounts to serious harm and/or significant harm, and whether there is a real chance, or alternatively a real risk, that she will experience that harm on return to Vietnam.
[7] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–70; Luu v Renevier (1989) 91 ALR 39, 45.
[8] Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437, 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, 596; Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.
The Tribunal has also had regard to the applicant’s representative’s written submissions dated 24 November 2023 which contended, among other things: the applicant had been advised of the legal criteria for a protection visa application and instructed that she did not meet the requirements set out in s 36 of the Act for grant of the visa; and the applicant was misled by her previous legal representative into making substantial payments to him/her for lodgement of a visa application that she was not fully informed of, and that she would not knowingly have authorised the lodgement of her protection visa application if the facts and law had been fully presented to her.
The Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Additionally, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that she will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
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).
SECTION 417 - REFERRAL TO MINISTER
On 24 November 2023 and 29 January 2024, requests were made to the Tribunal on the applicant’s behalf to refer her case for consideration by the Minister pursuant to s 417 of the Act. That provision affords the Minister a discretion to substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.
Having considered the ministerial guidelines relating to the Minister’s discretionary power as set out in PAM3: Minister’s guidelines on ministerial powers (s351, s417 and s501J), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention as it involves unique and exceptional circumstances as described under section 4 of the guidelines.
No further information has been received from the applicant in respect of matters generally relevant to whether the Tribunal should exercise its discretion to refer a matter to the Minister, and similarly to inform the Minister’s exercise of that power in the event a referral was made. However, the Tribunal is satisfied on the material before it that the applicant’s child is an Australian citizen and the holder of an Australian passport.[9]
[9] On 5 February 2024, an officer of the Tribunal accessed the Department’s movement records database and made a copy of those records relating to the applicant’s child, Master [A], date of birth [date], Australian passport number [deleted].
On the material before it the Tribunal is of the view that the applicant’s removal from Australia would have a profoundly adverse impact on the applicant in the event she was separated from her child, or alternatively, on the applicant’s Australian citizen child in the event he accompanied his mother when removed. The Tribunal notes the child’s biological father is an Australian citizen or permanent resident and the child is now school aged and would have developed significant cultural, community and familial ties to Australia. That child’s movement records before the Tribunal confirm that he has spent all but 3 weeks in Australia since his birth. The Tribunal is also satisfied on the material before it that the applicant does not currently have any other visa application avenues that are not finally determined. The applicant gave evidence in writing that she previously purchased a residential property in [Suburb 2], Victoria with her former partner, as well as a motor vehicle, and that there had been disputes with her former partner about the division of that property and/or the proceeds from its sale.
The Tribunal is also satisfied on the material before it, including that referred to at [28] of these reasons, that the immigration assistance the applicant purported to access at the time of the lodgment of her protection visa application was not provided to her in an ethical manner and in a way that complied with that legal practitioner’s ethnical and professional obligations.
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 Hanson
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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 family
For 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 family
For 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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