1819704 (Refugee)

1819704 (Refugee) [2022] AATA 1002 (21 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819704
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mark O'Loughlin
DATE:21 February 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the third named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

AND
The Tribunal remits the matter for reconsideration with the direction that the grant of the visa is not prevented by s.91W.

Statement made on 21 February 2022 at 2:49pm

CATCHWORDS
REFUGEE – Protection visa – Vietnam – irregular maritime arrival – evidence of identities provided – political activism in Vietnam and Australia – Catholic religion – credibility issues – child applicant’s autism – significant assistance required – real chance of persecution – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91W, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 20 June 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas on 22 March 2016. The delegate refused to grant the visas on the basis that the first and second applicants had not complied with a request from the Minister (made pursuant to s91W of the Act) to provide evidence of identity.
The delegate further considered the applicants’ claims to be owed protection and found that in any event he was not satisfied that any of the applicants are persons to whom Australia relevantly owes protection.
The first and second applicants appeared before the Tribunal on 13 and 29 September and by video on 19 October 2021 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of interpreters in the Vietnamese and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearings.
COMPLIANCE WITH REQUEST FOR INFORMATION
In early September 2021, shortly after the applicants had been invited to attend the hearing in this matter, the first and second applicants provided statements and documentary evidence in addition to submissions in relation to this matter.
The statements acknowledged that the first and second applicants’ claims to have been undocumented, underaged orphans at the time they came to Australia were untrue.
The applicants explained that they had concocted these untruths on the advice of people smugglers, who advised them to do so to improve their chances of being allowed to stay in Australia.
The applicants submit that their experiences with the government in Vietnam led them to be mistrustful authority and so they maintained the versions they had given when first interviewed after they arrived in Australia by boat in 2011.
The first and second applicants have now provided documents that appear to establish their identities as [the first applicant] born on [date] and [the second applicant] born on [date]. For the purposes of this decision the Tribunal will refer to the first applicant as [the first applicant] and the second applicant as [deleted].
Having heard evidence from the parties the Tribunal is satisfied that the first and 2^nd applicants’ reluctance to respond to the Minister’s request for information made pursuant to s91W of the Act was born of understandable anxiety in the face of a decision made in extreme circumstances which the Tribunal finds is a relevant reasonable explanation for failing to comply with the request.
On that basis and by reason of the effect s91W (3) of the Act, the Tribunal finds that the first and 2^nd applicants’ applications do not fail for failure to comply with s91W of the Act.
The Tribunal therefore proceeds to consider whether the applicants satisfy the criteria for protection visas.
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). The Tribunal is satisfied that the first and second applicants are citizens of Vietnam.
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.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
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, 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
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In submissions the first applicant claimed that he is owed protection will because of the likelihood he will be persecuted if he is returned to Vietnam due to his political activism in Vietnam, his political activism since he arrived in Australia, his membership of Viet Tan, and his online blogging and [social media] activities.
The second applicant[made] claims in relation to her online blogging activity, her Catholic religion and related activism in Vietnam as well as her involvement with Viet Tan.
The applicants also made joint claims for protection on the basis that they would be subject to persecution as failed asylum seekers.
The second applicant had also made submissions as mother of the third applicant[that] he suffers from autism and that he and the rest of the family will face forms of stigma and discrimination from the Vietnamese community.
The Tribunal has also had regard to submissions made by a previous representative dated 10 May 2018, particularly paragraphs 10 to 14 which relate to the 3^rd applicant’s autism.
In evidence, the first applicant said that he had been involved with an activist group in Vietnam called “Tam Ho”. He said that this group was involved in protests against Chinese involvement in Vietnamese internal affairs and that other people who engaged in similar protests were persecuted suggesting that he risked the same treatment if he is returned to Viet Nam.
He said that the group was intending to display protest posters which he had arranged but that the group was arrested and, fearing that he would be identified as a member of the group when the police questioned the prisoner, he was prompted to arrange to go to Vietnam by boat.
The applicant supported this claim with country information relating to arrested protesters and with evidence of posters that had apparently been displayed. The applicant’s evidence appeared to be that he had arranged for printing those posters.
The applicant said that he and his wife had been saving for a house and that the money that they needed to leave Vietnam, about US$12,000, was therefore fortuitously available to him.
He said that his wife was surprised when he told her that they needed to leave Vietnam and that she had not known about his political activism. He did not know whether or not his wife was politically active in Vietnam. He said that he believed that if she stayed and he escaped she would face difficulties with the authorities and so was better that she accompany him. He did not suggest that she needed to flee Vietnam because her own activism put her at risk.
The second applicant gave evidence that she had been involved in the organisation of a prayer night and that that had drawn the attention of the police.
She said that she was served with a summons to attend the police station for questioning.
The second applicant said that by coincidence this was at the same time that her husband decided that he should leave Vietnam due to his own political activism.
The Tribunal is not satisfied that the claims of risk of persecution due to political activism have been demonstrated. The suggestion by both applicants that neither knew that the other was a political activist is difficult to accept and the suggestion that the wholly separate political activities of each applicant led to a crescendo on the same day is so unlikely that the Tribunal does not accept it.
The first applicant also claimed that his political activities in Australia place him at risk of persecution should he be returned Vietnam.
It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s 91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.
The Tribunal has considered the applicant’s evidence and is not satisfied that the conduct that the first applicant has engaged in falls within the exception.
The Tribunal disregards the first applicant’s claim that his political activities in Australia place him at risk of persecution should he be returned to Vietnam.
The Tribunal disregards the first applicant’s online activity in Australia for the same reason.
The Tribunal has regard to the second applicant’s evidence about her blogging activities which started in Vietnam. The Tribunal accepts the submission that criticism of the Vietnamese government can lead to relevant persecution but does not accept that the applicant is likely to suffer such persecution by reason of her online activities. There is no suggestion that she has attracted the attention of the authorities before she left Vietnam and no reason to have regard to her conduct while in Australia for the purposes of this claim.
The Tribunal considers the applicant’s evidence about having attracted the attention of the Vietnamese police due to her religious activities to be unconvincing. The suggestion that the police summonsed her for questioning on the same day that her husband needed to flee the country for unrelated reasons that he had not, until then, communicated to her is unlikely and the Tribunal is not satisfied that the second applicant was being sought by the Vietnamese police as claimed.
The second applicant claims that changes in the law in Vietnam in 2018 mean that Catholics are now more likely to be subjected to government interference and that the applicant will be obliged to alter her manner of religious observance or risk arrest and detention.
This submissions in support of this claim refer to the applicant being seen as a “social activist” as discussed in the relevant DFAT report[1]. The Tribunal does not accept that the second applicant was being sought by the police in Vietnam. The Tribunal is not satisfied that the second applicant is a social activist as contemplated and is not satisfied that the changes to the law represent a real chance of persecution for the second applicant if she is returned to Vietnam.
[1] DFAT Country Information report Vietnam 2019
The first and second applicants claim that they face a real chance of arrest as failed asylum seekers if they return to Vietnam. They concede that the relevant DFAT report notes that there is no evidence of any relevant action against any returnees to Vietnam from Australia.
The first and second applicants submit that the first applicant’s profile by reason of both his activities in Vietnam and his association with Viet Tan while in Australia creates a cumulative profile that exposes him to the risk of being sentenced as a failed asylum seeker.
There is no support offered for that conclusion which the Tribunal regards as speculative. The Tribunal is not satisfied that the first applicant faces a real chance of prosecution as a failed asylum seeker.
The applicants claim that applicant three, who is an infant, faces a real chance of persecution on the basis of his autism.
The applicants have submitted evidence[2] and to which the Tribunal has had regard about applicant three’s condition.
[2] report Assessments Australia 7 Dec 2018 prepared by [the] Assessing Psychologist and report [by the] speech pathologist, undated.
The Tribunal accepts the evidence of the second applicant and the documentary evidence provided and finds that the third applicant’s autism manifests in ways that would be quite evident to even a fairly casual observer and would be challenging in a school situation.
He is largely non verbal and prone to behaviour such as inappropriate running that would be seen as eccentric by his peers. He is prone to being incontinent of both urine and faeces. He requires substantial extra help in a classroom situation both to help him participate and to ensure that he does not endanger himself. He also requires significant assistance using the lavatory and undressing and redressing himself for those purposes.
The expert evidence is that he requires an individual program at school adapted to meet his skill level, self regulation, and interest. His cognitive skills are described as “extremely low”.
He was assessed as requiring significant support including with school and with daily living skills in addition to assistance from a speech pathologist.
The applicants provided evidence from [a health] Centre dated 22 May 2020 which sets out some of the difficulties faced by autistic children in Vietnam.
The Tribunal accepts that, although recognition of the condition is improving, issues with public perception mean that meaningful support is limited and that children with the condition have not been able to integrate into the community due to social barriers/prejudices.
The Tribunal further has regard to country information, and to the evidence of the first and second applicants, and the finding of the delegate that Vietnamese society and Buddhist ideas of karma can result in people with conditions like autism and their families being subjected to stigmatisation.
Having weighed the evidence and the country information the Tribunal is satisfied that Applicant 3 faces a real chance of persecution if the family is removed to Vietnam.
For the reasons given above the Tribunal is satisfied that the third named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s. 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the first applicant is the third applicant’s father, the second applicant is the third applicant’s mother and the fourth applicant is the third applicant’s sister and they are members of the same family unit as the third named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the third named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the third named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
AND
The Tribunal remits the matter for reconsideration with the direction that the grant of the visas is not prevented by s.91W.
Mark O'Loughlin
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1002

21 February 2022

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