1816091 (Refugee)

1816091 (Refugee) [2018] AATA 4251 (29 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816091
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Alison Murphy
DATE:29 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 October 2018 at 2:29pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – societal discrimination – land dispute with the authorities – parents reprimanded for anti-government views – discontinued studies due to financial hardship – credibility issues – inconsistent evidence – Tribunal questioned whether the applicant ceased studies due to his protection claims – no well-founded fear of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 424A

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
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 on 28 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age] year old male from [Nghe An], Vietnam who applied for the visa on 9 May 2018. He seeks to invoke Australia's protection obligations so that he does not have to return to Vietnam, where he claims to fear harm because of a land dispute between his parents and the Vietnamese authorities.
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person.
In assessing the applicant’s claims, I have taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
For the following reasons, I have concluded that the decision under review should be affirmed.
HISTORY OF PROCEEDINGS
The delegate’s decision indicates the applicant entered Australia on 24 March 2013 on a [student] visa valid until 7 September 2017. The applicant remained in Australia until he was detained by [the] police on 8 May 2018 and placed in immigration detention. He applied for the protection visa on 9 May 2018. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was owed protection by Australia.
The applicant appeared before the Tribunal on 4 October 2018 to give evidence and present arguments in support of his claim. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.
On 11 October 2018 the Tribunal wrote to the applicant pursuant to the provisions of s424A of the Act. The applicant responded to the Tribunal’s letter on 25 October 2018.
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility
It is important to adopt a reasonable approach when making findings of credibility[1]. However 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. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant[2].
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
As discussed with the applicant at hearing, I have significant concerns about the credibility of the applicant’s claims because of the way they have changed over the course of these proceedings. I am also concerned that some of his claims are contradicted by statements he has made to the department when interviewed after being taken into detention and in relation to his application for a bridging visa. The Tribunal’s particular findings are set out below.
Country of nationality
It is not in dispute that the applicant is Vietnamese national and he has produced to the department copies of his passport, national identity card and his birth certificate. At hearing the applicant was unable to produce his Vietnamese passport, which he stated was in the possession of his friend [Mr A]. He agreed that the copy of the passport contained on the departmental file indicated that it remained valid. The Tribunal finds the applicant is a citizen of Vietnam and has assessed his claims against that country as the ‘receiving country’ for the purposes of s.5(1).
The applicant’s background
The applicant is a [age]-year-old male from Nghe An province in Vietnam. He has never married and at the time of application he stated his parents [and sibling] remained living in Nghe An.
The applicant completed primary and high school in Vietnam and travelled to Australia on a [student] visa. He states he commenced but did not complete [the] course. At the time of the hearing he gave evidence he was living with his friend [Mr A].
I accept each of the above matters to be true.
The applicant’s claims for protection
The applicant states in his protection visa application that his family sent him to Australia to study at a time when they were able to afford it. In early 2017, his family’s farmland on which they had been living for many generations was taken by the local government. His parents protested and were jailed for having anti-government views. As a result he could not afford to continue his studies. His visa expired and he did not know what to do. He cannot go back to Vietnam as he would suffer a similar fate to his parents.
He states that if a person is classified as being anti-government, the government will come and get them wherever they go within Vietnam, even if they just want to protest the unfair policies and human rights abuses. He states the Vietnamese authorities arrest people for no reason.
At hearing the applicant gave evidence that his parents had inherited farm land in Nghe An from his paternal grandfather, who died in 2017 but gave the land to his parents many years before that. He stated that he and his parents and siblings lived on that farm land together before he came to Australia and his parents made their living from [the] land. He stated that as at the time of hearing, his father was in jail and his mother had fled to Hanoi while his siblings lived with their paternal grandmother at her home in Nghe An.
When asked about his claims for protection, the applicant gave evidence that at the end of 2016 or the beginning of 2017, his family’s farm land was lost to the Vietnamese government and this was part of the reason he had stopped his studies. When it was pointed out he had earlier given evidence he ceased his studies in 2015, he stated that his parents’ problems started in 2015 when the Vietnamese authorities came to his parents’ house and said they intended to confiscate the land.
When asked about his parents’ problems in 2015, he said the Vietnamese authorities came and created trouble for his parents so that they couldn’t do anything on the land. He gave evidence the authorities offered his parents compensation but it wasn’t enough and so his parents refused the offer. He said a couple of months later the authorities returned and again demanded the land but his parents still did not agree. At the end of 2016 or the beginning of 2017, the authorities confiscated the land. He was not able to say how much land had been confiscated by the Vietnamese authorities or why they wanted the land.
The applicant stated that after the land was confiscated, his parents went to ask for the land back but were not able to do anything. They moved to live with his paternal grandmother after which his father was arrested a couple of times and then released. He stated that two months before the Tribunal hearing his mother told him that his father had fought with the police and been arrested and his mother had fled to Hanoi and gone into hiding. When asked if his mother had also been arrested, he stated that she had not been arrested but she had been beaten. He was unable to provide further detail about these events or exactly when they occurred.
When asked what he feared would happen if he returned to Vietnam, the applicant stated that he was afraid the Vietnamese authorities would question him about whether his mother is and beat and torture him.
When asked if there were any other reasons he feared returning to Vietnam, the applicant stated that he wanted to stay in Australia where people were free to travel and express their views and he could live in a clean environment with no pollution. He stated his grandmother was very old now and he feared he would have nowhere to live.
For the following reasons I do not accept the applicant’s claims that his family’s farm lands were confiscated.
I note the applicant was interviewed several times by departmental officers after being taken into immigration detention and copies of the recordings or transcripts of those interviews are contained on the departmental file:
·An interview with a compliance officer conducted on 8 May 2018 (the compliance interview);
·An interview with respect to his bridging visa application conducted on 10 May 2018 (the bridging visa interview);
·An interview with the delegate about his protection claims on 25 May 2018 (the protection visa interview).
There are multiple inconsistencies between his statements at these interviews, the claims made in his protection visa application lodged 9 May 2018 and his evidence at the Tribunal hearing on 4 October 2018.
Firstly, there are inconsistencies in the applicant’s evidence about when his family’s land was confiscated and the effect this had on his studies. In his protection visa application lodged 9 May 2018, he stated that his family’s farm land was taken in early 2017 and due to the situation he could not afford to continue his studies. However during the protection visa interview on 25 May 2018, he stated he stopped studying in 2014. At the Tribunal hearing he stated he stopped studying in the middle of 2015, in part due to his parent’s land issues, and his family’s land was confiscated at the end of 2016 or the beginning of 2017. When these apparent inconsistencies were put to him at the hearing, he stated his parent’s problems started in 2015 when the Vietnamese government came to his family’s home to demand the land, but the land was not confiscated until the end of 2016 or the beginning of 2017. When it was pointed out that he had earlier stated he stopped studying in 2014 because of his parent’s problems, the applicant stated he was unable to remember the date.
In response to the Tribunal’s s.424A letter, the applicant stated that the issues with his family’s land and assets actually started in 2014 and his parents kept it to themselves. He stated the situation was not bad then, and the worst nightmare started in late 2016 and early 2017. While I would not expect the applicant to recall the exact dates of these events, the multiple inconsistencies in his various statements about when his parent’ land was confiscated and when he stopped studying causes me to doubt that he ceased his studies for any reason relating to his protection claims.
Secondly the applicant’s claims about his family’s financial position as a result of the land dispute are inconsistent with his statements at the compliance interview on 8 May 2018. In his protection visa application the applicant stated that as a result of his parent’s problems, he was unable to afford to continue his studies and at the protection visa interview on 25 May 2018, he stated his parents were unable to send him money from 2014. However at the interview with respect to his bridging visa application conducted on 10 May 2018 he is recorded as stating that if was granted a bridging visa while awaiting the outcome of his protection visa application, his parents would send him money to support him financially. When asked if his parents had been sending him money, he stated they had been sending $800 - $1000 per month and the last time they sent him money was about 2 months earlier. When this was put to him at the Tribunal hearing, he initially denied making that statement at his bridging visa interview. When that part of the interview was read to him, he stated that he had said his parents had sent him money in the past.
In response to the Tribunal’s s.424A letter, the applicant stated that his mother last sent him money in May 2018 which she managed to borrow from relatives. He suggests it could have been a misunderstanding between the interpreter and the officer at the compliance interview on 8 May 2018 that he is recorded as stating that if he were granted a bridging visa his parents would send money to support him, as he would not have said that. He states his parents supported him financially up to April 2016, just before the family farm was confiscated. However I note this is inconsistent with evidence at the Tribunal hearing that he stopped studying in the middle of 2015 because his parents could no longer afford to support him. I also consider the applicant’s statements at his bridging visa interview and in his response to the Tribunal’s s.424A letter indicate his parents continued to send him money as recently as two months prior to that interview, contrary to his initial evidence in these proceedings.
Thirdly, the applicant delayed making claims for protection until after he was detained by the Department of Home Affairs and placed in immigration detention in May 2018, approximately three years after he now says he was forced to stop studying because of his family’s problems and almost a year after his student visa expired. The delay in making claims for protection, particularly after his student visa expired in July 2017, causes me to doubt he fears harm in Vietnam as claimed.
Finally, the applicant stated at his compliance interview that he was willing to depart Australia, that he didn’t intend to apply for a visa to remain in Australia, that he wanted the Department to purchase a ticket so he could return to Vietnam and there were no reasons why he couldn’t return to Vietnam. He did not mention his family’s land dispute or suggest his parents were having difficulty in Vietnam, even though this interview was conducted only the day before he lodged his application for a protection visa. At hearing the applicant stated that he did not mention his claims when he was first detained because he was afraid he would be arrested and tortured by the Australian authorities as occurred in Vietnam. In response to the Tribunal’s s.424A letter, the applicant stated that he was nervous, scared and traumatised at the time of being detained and was not aware he could be protected by Australia, and so thought that going back to Vietnam was a better option without realising it was the wrong option.
In view of my other broad concerns about the credibility of the applicant’s claims, I do not accept that explanation. I consider the applicant’s statements at his compliance interview to the effect he was willing to depart Australia and return to Vietnam and that there were no reasons why he couldn’t return to Vietnam indicate he does not have a fear of harm in Vietnam.
For the above reasons I do not accept the applicant’s parents’ farming land has been confiscated by the Vietnamese authorities as claimed. It follows that I do not accept his parents have protested against the decision to confiscate their land, nor that either one of them has been arrested, jailed or beaten by the Vietnamese authorities for reasons of a land dispute. For these reasons I do not accept there to be a real chance the applicant will be harmed by the Vietnamese authorities for reasons of his relationship with his parents or because of a land dispute between the Vietnamese authorities and his parents. Nor do I accept the applicant would have nowhere to live if he returned to Vietnam.
I accept the applicant wishes to stay in Australia because its population have greater freedom to travel and express their views and it is a clean environment with no pollution. However given my findings above, I do not accept there to be a real chance that the applicant will be targeted for serious harm by Vietnamese authorities or any other person or group if he returns to Vietnam, now or in the reasonably foreseeable future.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether it there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, I have found the applicant is a national of Vietnam and for the same reasons I find that Vietnam is the ‘receiving country’ for the purposes of s.5(1).
I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Vietnam now or in the foreseeable future for reasons of his relationship with his parents or because of a land dispute between the Vietnamese authorities and his parents.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] For the same reasons I do not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
For these reasons I do not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vietnam, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
CONCLUSIONS
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 4251

29 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction