1815118 (Refugee) - [2021] AATA 2814

1815118 (Refugee) [2021] AATA 2814 (20 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815118
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:James Lambie
DATE:20 July 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 20 July 2021 at 3:02pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Roman Catholic – no personal harm in home country and low-level membership and activity in Australia – imputed political opinion – low-level participation in protests in Australia and limited knowledge of issues – activities towards strengthening protection claim – domestic violence by father – children born in Australia – returned failed asylum seeker – department’s data breach – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 45AA, 65, 91R, 91S
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2
CASES
MIBP v SZTZI [2016] HCA 29
MIEA v Guo (1997) 191 CLR 559
MZYPA v MIAC [2012] FMCA 43
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], who claims to be citizen of Vietnam, applied for the visa on 13 June 2014 and the delegate refused to grant the visa on 13 January 2016.
[The applicant] applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
This matter was remitted to this Tribunal by the Federal Circuit Court of Australia on 21 May 2018.
[The applicant] appeared before the Tribunal on 4 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
[The applicant] was represented in relation to the review by her registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of…

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: [2021] AATA 2814
Decision Date: 20 July 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Vietnamese woman. The applicant claimed to fear persecution in Vietnam due to her Roman Catholic faith, citing past incidents of abuse at her church and general discrimination against Catholics. She also claimed to fear returning home due to domestic violence from her father. Furthermore, she asserted a fear of harm from the Vietnamese government based on an imputed political opinion, stemming from her participation in protests in Australia and her husband's political profile. The applicant had arrived in Australia in May 2013 and had previously had her claims considered by a delegate and an earlier Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a refugee under section 36(2) of the Act, and if not, whether she was entitled to complementary protection. Specifically, the Tribunal had to determine if the applicant faced a real risk of significant harm in Vietnam by reason of her religion or imputed political opinion, and whether any such risk was personal to her or faced by the population generally. The Tribunal also considered whether the applicant could reasonably relocate within Vietnam or obtain protection from Vietnamese authorities to avoid any such risk.

The Tribunal accepted that the applicant was a practising Catholic and that she had witnessed an incident of abuse at her church in Vietnam, which caused her fear. However, it found that her knowledge of church staff was limited and she provided no evidence of membership. Crucially, the Tribunal found that the applicant had not established that she faced a real risk of significant harm in Vietnam based on her religion. The Tribunal noted that the risk of harm faced by Catholics in Vietnam was generally faced by the population and not personal to the applicant. Similarly, regarding the imputed political opinion, the Tribunal found that the applicant's participation in protests in Australia was low-level and her knowledge of the issues limited, and that these activities appeared to be towards strengthening her protection claim rather than genuine political engagement. The Tribunal also considered the domestic violence claim, but it was not central to the final decision. The Tribunal applied the principles that the onus is on the applicant to provide sufficient detail to establish the relevant facts, and that a decision-maker is not required to make the applicant's case or accept all allegations uncritically. The Tribunal also had regard to relevant country information and guidelines.

The Tribunal affirmed the decision not to grant the applicant a Protection visa, finding that she did not satisfy the criteria under section 36(2) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal is satisfied on the basis of the evidence before it that [the applicant] does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.Assessment of claims and evidence, and findings: 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 it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70). [The applicant] did not make fresh submissions in respect of her application to this Tribunal but indicated that she intended to rely substantially on her claims previously considered by the delegate and the earlier Tribunal. The exception to this is the new material submitted in respect of her claimed imputed political opinion.Claims relating to practising religion [The applicant] claims to have been a practising Catholic all her life. She said that one of her uncles is a priest in Vietnam and that, from the time she was very young, she attended her local church, [Name] in Nghe An, regularly. Since arriving in Australia, she claims to have regularly attended church at [Suburb]. While her knowledge of the clerical and lay staff of the church was surprisingly limited, and she did not produce a letter of support or any other evidence of membership, I accept that she is a practising member of the church. While in Vietnam, she claims that, when she was about [age] years old, she witnessed strangers coming into her church and abusing parishioners, including physical abuse. She believes these people were working for the authorities, because the Catholic faith is not welcome in Vietnam. I accept that this incident occurred and that it caused her a sense of fear. She claimed that Catholics are discriminated against in Vietnam, and that educational and job opportunities are denied to them. She said that, in order to obtain membership of the Communist Party, one had to relinquish one’s religion. When asked for an example of discrimination, she claimed that an older cousin of hers with a higher university degree could not find a job. When asked how this squared with her claim that Catholics were denied educational opportunities, she told the Tribunal that she no longer maintained that particular claim.

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.James LambieSenior Member

Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.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, 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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether [the applicant] meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims [The applicant]’s claims are summarised in the delegate’s decision, the decision of the previous Tribunal and her protection visa application. [The applicant] is a [Age]-year-old Vietnamese woman who left Vietnam legally by crossing the border into [Country]. She arrived in Australia by direct entry [in] May 2013, before the excision of the Australian mainland from the migration zone on 20 May 2013. She claims to be a practising Catholic who has suffered prejudice, discrimination and persecution by reason of her religion, having witnessed violence against parishioners when she was 15 years old and also hearing about incidents in other parishes. [The applicant] also claims to fear returning to her family’s home because of her father’s violence to her. Since arriving in Australia, [the applicant] has participated in some political activities and claims to fear that the Vietnamese government would cause her harm by reason of her imputed political opinion, her status as an asylum seeker in Australia, and her husband’s political profile.Evidence The Tribunal has before it a range of material, including, relevantly:a)[The applicant]’s protection visa application, which was lodged on 13 June 2014; b)The applicant’s identity documents being a copy of her Vietnamese national identity card and high school certificate;c)The protection visa decision record dated 13 January 2016 (the delegate’s decision record); d)The previous Tribunal’s decision record dated 1 December 2016;e)The application for review form dated 18 July 2018; f)Department file [number] concerning [the applicant]’s protection visa application;g)AAT file 1601614 containing material lodged by [the applicant] or on her behalf;h)A letter of support from [Mr A] and a selection of photographs of [the applicant] engaged in protest activity;i)Material lodged by [the applicant] after the hearing, comprising further photographs, screenshots of text messages, and copies of pamphlets and media articles, referred to in more detail below.j)Country information from the latest DFAT Country Information Report on Vietnam, published on 13 December 2019 (DFAT Report on Vietnam) and other sources, referred to below.Country of reference / receiving country: