1821667 (Refugee)
[2024] AATA 2546
•12 February 2024
1821667 (Refugee) [2024] AATA 2546 (12 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821667
COUNTRY OF REFERENCE: Vietnam
MEMBER:Don Smyth
DATE:12 February 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 February 2024 at 3:41pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – claim of someone chasing his life and fear they may kill him – delay in applying for protection, return visit and period as unlawful non-citizen – wife and very young child – no appearance at hearing after several reschedulings – applicant’s responsibility to specify particulars and provide sufficient evidence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5H(1), 36(2)(a), (aa), (2A), 65, 426(1A)
Migration Regulations 1994 (Cth), Schedule 2CASES
GLD18 v MHA [2020] FCAFC 2
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZRSN v MIAC [2013] FCA 751Any 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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND
The applicant claims to be a citizen of Vietnam and has provided a copy of the bio data page of his Vietnamese passport. I accept that the applicant is a citizen of Vietnam.
According to information provided in his protection visa application, the applicant was born in Bac Ninh in [Year].
The applicant indicated that he had lived at an address in Gia Binh, Vietnam from [Year] to [Date] and in [Suburb], Queensland since April 2015. The applicant described his ethnic group as Vietnamese and indicated that he had no religion.
The applicant indicated that he had departed Vietnam [in] April 2015 and arrived in Australia as a student. He applied for a protection visa on 30 April 2018. On 26 July 2018, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
In his application, the applicant provided information in relation to his family and his background in Vietnam. He indicated in his protection visa application that he had never married. He provided details in relation to his parents and brother. The applicant indicated that he had never been employed.
The applicant made brief written claims in his application. With regard to his reasons for leaving Vietnam he stated, ‘Study.’ In response to a question as to whether he had ever experienced harm in Vietnam, he replied in the affirmative. He stated that someone was chasing his life. He indicated that he had not sought help within Vietnam after the harm and stated that ‘no one can help me’. In response to a question about whether he had moved, or tried to move, to another part of Vietnam to seek safety, he replied in the affirmative. He went on to state that he had moved to Australia. With regard to what he thought would happen if he returned to Vietnam, he stated, ‘They may kill me.’ He stated that the government would not protect him and that they still could find him wherever he went.
On 26 July 2018, a delegate of the Minister made a decision to refuse to grant the applicant a Protection visa. The delegate’s decision set out aspects of the applicant’s migration history indicating that he arrived in Australia [in] April 2015 as the holder of a subclass 573 visa; that he departed Australia [in] February 2016 and returned [in] March 2016; that his subclass 573 visa expired on 30 August 2017 and he became an unlawful non-citizen; and that he lodged a protection visa application on 30 April 2018.
The delegate was not satisfied that there was a real chance of persecution for any of the reasons in s 5J(1)(a). With regard to complementary protection, the delegate referred to independent country information. The delegate found that the applicant’s claims were vague and lacking in detail and was not satisfied that the applicant was being pursued by a gang. The delegate found that there was an active policing system in Vietnam and noted that the Australian Department of Foreign Affairs and Trade reported that the police were generally effective at maintaining public order. The delegate found that there was no evidence that the applicant would not be able to seek law enforcement assistance should he need to do so. While noting country information indicating that there was entrenched corruption and concerns about capacity and training, the delegate found that the Vietnamese police had demonstrated a willingness to tackle crime and enforce the law. The delegate was not satisfied that there were substantial grounds for believing that the applicant will suffer significant harm in Vietnam.
Review Application
The applicant applied for review on 26 July 2018. A copy of the delegate’s decision was attached to the review application.
The applicant has submitted to the Tribunal a Pre-hearing Information Form signed on 10 October 2023. In that form he stated that the main reason for him to stay in Australia was to take care of his wife and son. He stated that they really needed him to support them. With regard to whether there were any reasons that might affect his ability to take part in a hearing in person, the applicant indicated that his wife had given birth to their son on [Date] and he felt it would be better to stay near them to provide assistance with their son and care for her while she was recovering.
On 10 January 2024, the Tribunal invited the applicant to attend a hearing on 29 January 2024. The hearing invitation informed the applicant that, if he did not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review.
The hearing invitation was sent to the applicant by email to the email address provided to the Tribunal by the applicant. The applicant did not respond to the hearing invitation. He did not appear at the hearing scheduled for 29 January 2024. On the day of the hearing, Tribunal officers made attempts to call the applicant. A Tribunal officer ultimately spoke with the applicant who indicated that he had not received the hearing invitation but went on to advise that he had received it but rarely checked his emails. He referred to having taken his child to the doctor. A further call was made to the applicant later in the day. During this call the applicant gave the Tribunal officer permission to speak with his wife. The officer explained that the applicant should send written reasons why they could not attend the hearing and request a postponement. The applicant’s spouse asked if she could change the email address for the applicant as he did not check his emails often. She was advised that a written request should be sent. It is recorded that they both acknowledged that they would send an email. Although no further correspondence had been received, a Tribunal officer again contacted the applicant on 1 February 2024 to confirm that he wished to attend a rescheduled hearing. The applicant was advised that the Tribunal was able to reschedule the hearing to 9.30 am on Thursday, 8 February 2024 and the applicant confirmed that he was able to attend at this time.
Also on 1 February 2024, the Tribunal received from the applicant an email explaining his non-attendance at the hearing. He stated that, when the email was sent, his son had recently been discharged from hospital due to having COVID. He referred to the fact that it was his first baby, to lacking first hand experience of taking care of a baby, to having minimal support, and to his main priority being taking care of the baby. He said he had been doing his best to help him to a full recovery which had resulted in the email slipping through unnoticed. On 1 February 2024, the Tribunal sent the applicant a hearing invitation advising that the Tribunal had agreed to reschedule the hearing and inviting him to the rescheduled hearing at 9.30 am on Thursday, 8 February 2024. Again, this was sent by email to the address that had been provided to the Tribunal by the applicant. This was the same email address from which the applicant had sent his email of 1 February 2024. An SMS hearing reminder was sent to the applicant’s mobile number one day prior to the rescheduled hearing.
The applicant did not attend the rescheduled hearing on 8 February 2024. The Tribunal made multiple attempts to contact the applicant on his mobile telephone number on the morning of the hearing but was not able to make contact with the applicant. The applicant has not provided any reason for his non-attendance at the rescheduled hearing.
I am willing to accept that the applicant has a baby born on [Date], approximately [Number] months ago. He completed the Pre-hearing information form on 10 October 2023 and I understand that at that time he wished to stay with his son and care for his wife. I am sympathetic to the demands of having a new baby, particularly if the baby had been sick. However, I note that the applicant’s email of 1 February 2024 did not point to anything that prevented the applicant from attending the hearing scheduled for 29 January 2024 other than his apparent failure to read the invitation that had been sent to his email address. He indicated that his son had been discharged before the hearing invitation was sent. In circumstances where the applicant indicated that he had not in fact read the hearing invitation and indicated an interest in having the hearing rescheduled, I agreed to reschedule the hearing to provide an opportunity for him to attend. The applicant did not attend the rescheduled hearing and has not contacted the Tribunal to provide any explanation for his non-attendance. The Tribunal made multiple attempts to call him on the morning of the rescheduled hearing. I note that the initial hearing invitation was sent to the applicant on 10 January 2024 at the email address he had provided to the Tribunal and provided notice of the initial hearing date, notwithstanding that the applicant may not have read the email. The applicant was also consulted in relation to the rescheduling of the hearing. I have had regard to the applicant’s circumstances but consider that he was provided with reasonable notice of the rescheduled hearing. He has not provided any reason for his non-attendance.
Having carefully considered all the circumstances, I have decided that it is appropriate, pursuant to s 426A(1A), to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
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, 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 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 itself 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70, Randhawa v MILGEA (1994) 52 FCR 437 at 451).
The applicant’s claims are lacking in detail. He claimed that someone is chasing after his life, that no one could help him, that they might kill him, that the government would not protect him and that they could still find him wherever he went. However, he has not provided any detail, for instance, as to who it is who is chasing after him, in what context this arose or why they are chasing after him. He has not provided detail of any past harm or of why anyone might want to kill him or harm him. On the very limited information before me, I am not satisfied that he has ever come to the adverse attention of anyone in Vietnam or that anyone has been chasing him or seeking to kill him or otherwise harm him. I am not satisfied, looking to the reasonably foreseeable future, that there is a real chance that the applicant would be persecuted in Vietnam.
I note that, in his Pre-hearing information form, the applicant indicated that the main reason to stay in Australia was to take care of his wife and son. He stated that they really needed him to support them. While I do not have documentation such as a birth certificate before me, I am willing to accept that the applicant has a child born in Australia in [Month, year]. I understand that he might wish to be with his wife and child in Australia to support them. However, I am not satisfied that this is a matter that gives rise to a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion.
Looking to the reasonably foreseeable future, I am not satisfied that there is a real chance that the applicant would be persecuted for any of the reasons enumerated in s 5J(1)(a).
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). As discussed above, on the very limited information before me, I am not satisfied that he has ever come to the adverse attention of anyone in Vietnam or that anyone has been chasing him or seeking to kill him or otherwise harm him. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
In coming to this conclusion, I have had regard also to the applicant’s submission that the main reason for him to stay in Australia is to take care of his wife and child. I understand that he might wish to be with his wife and child in Australia. However, separation from his wife and child following removal from Australia does not amount to ‘significant harm’ for the purposes of s 36(2)(aa). Having regard to the Court’s reasoning in SZRSN v MIAC and GLD18 v MHA, separation from a person’s family, where the claimed harm arises from the act of removal itself, does not meet the definitions of ‘significant harm’ in s 36(2A).[1]
[1] SZRSN v MIAC [2013] FCA 751 at [47]–[49]; GLD18 v MHA [2020] FCAFC 2 at [36]–[58]
I am 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.
Don Smyth
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Standing
-
Statutory Construction
-
Natural Justice
0
5
0