1822751 (Refugee)

1822751 (Refugee) [2021] AATA 5122 (19 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822751
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Paul Windsor
DATE:19 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 November 2021 at 11:17 am
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – made comments critical of Communist Party of Vietnam – limited information about claimed political activity –able to depart Vietnam legally – mother of Australian citizen children – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
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 Home Affairs on 1 August 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 8 June 2017.
In her protection visa application the applicant indicated she was born on [date] in Thua Thien-Hue, Vietnam. She stated she is divorced. She indicated she departed Vietnam legally [in] October 2012, travelling on a Vietnamese passport issued [in] 2012, and arrived in Australia on [date] October 2012, entering on a Student visa. The applicant indicated that she returned to Vietnam to visit family on [date] February 2013, returning to Australia on [date] March 2013. She indicated she has previously been refused a subclass 820 (Partner) visa.[1]
[1] See the Departmental file.
In her application the applicant stated that she is fearful that if she returns to Vietnam she will be arrested and interrogated regarding her political views and comments she has made against the Communist Party of Vietnam.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, noting the applicant has provided limited information about her claimed political activity and no evidence in support of her claims, and that country information indicates political activists are frequently prevented by the Vietnamese government from leaving the country and there is no evidence the Vietnamese government routinely monitors protest activity abroad.
The applicant applied to the Tribunal for review of this decision on 7 August 2018. She provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
On 11 November 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it by video conference using Microsoft Teams at 9:00 am on 26 November 2021 to give evidence and present arguments relating to the issues arising in her case.
The applicant replied on the same day, advising the Tribunal that she would like the Tribunal to consider deciding her case on the papers. She commented that she is now the mother of [Australian] citizen children who are in her care. She indicated that she would like to present her case to the Minister and hopes the Tribunal can refer the matter to the Minister for consideration.
At the Tribunal’s request, on 16 November 2021 the applicant returned the completed ‘Response to hearing invitation form’ confirming that she will not participate in the hearing, and consents to the Tribunal making a decision on the papers without taking any further action to allow or enable her to appear before it. Accordingly, this matter has been determined on the evidence available to 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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims, as set out in her protection visa application, are summarised as follows:
·She left Vietnam as a student to study in Australia.
·She is fearful that if she returns to Vietnam the authorities will arrest, interrogate, torture and abuse her in relation to her political views and comments she has made.
·She has expressed many opinions against the Communist Party of Vietnam, regarding their treatment of certain minority groups and that their policies can only benefit them, not the general people of Vietnam. She believes they are a government of dictatorship where there is no freedom of speech and where the press is controlled.
·She can’t seek protection in Vietnam because she is fearful of the Vietnamese authorities.
Findings and reasons
Identity
On the basis of the copy of her Vietnamese passport submitted to the Department,[4] the Tribunal accepts that the applicant is a national of Vietnam and that her identity is as claimed. The Tribunal accepts that Vietnam is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[4] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Vietnam, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for them. 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 (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Background
The applicant is a [age] year old divorced woman who came to Australia on a student visa in October 2012, when she was [age] years of age. She is currently on a Bridging E visa. She indicated she has an older sister in Australia and previously was refused a subclass 820 Partner visa, but has provided little further information regarding her circumstances, other than copies of birth certificates indicating she has [Australian born children]. She provided copies of certificates indicating that all [children] are Australian citizens, having acquired Australian citizenship at birth.[5] She indicated in her protection visa application that she has never worked.
[5] See the Tribunal file.
The delegate’s decision record indicates that the applicant’s student visa was cancelled under s.116 of the Act on 5 November 2014. It indicates she made a Combined Partner (Class UK, Subclass 820/Class BS, Subclass 801) visa application on 7 May 2013 which was refused on 12 January 2015, with the refusal decision being affirmed by the Tribunal on 22 February 2016. Ministerial Intervention was sought but the matter was not referred to the Minister and was finalised on 3 May 2017.
Assessment
The applicant’s claims for protection are very brief, vague, lack detail and are unsupported by any corroborating evidence. While she claims to have expressed many opinions against the Communist Party of Vietnam regarding their treatment of certain minority groups and their policies, she has not provided any information regarding when and where she expressed these views, how they were expressed (verbally or in writing) and the context in which they were expressed. She has not provided any supporting evidence such as copies of written material she had prepared and made public, copies of blog posts or screenshots of text messages, and/or photographs of her at any protests or demonstrations. She has not indicated whether her claimed activities took place in Vietnam, Australia or both. She has not indicated that her claimed activities ever came to the attention of the Vietnamese authorities and, if so, what the consequences were. There is nothing to indicate or suggest she was ever detained, arrested, interrogated, abused or harmed while she was in Vietnam. These are all matters that the Tribunal would have questioned the applicant about in detail had she attended a hearing.
The applicant was also able to obtain a Vietnamese passport in [2012], shortly before she came to Australia in October 2012 and was able to depart Vietnam legally without any apparent difficulties, indicating she was not of significant adverse interest to the Vietnamese authorities when she departed Vietnam in October 2012.
The applicant voluntarily returned to Vietnam in February-March 2013 to visit family, indicating she did have concerns regarding her safety in Vietnam at that time.
The applicant also did not seek protection in Australia until June 2017, nearly five years after she arrived in Australia. She only made a Protection visa application once her initial request for Ministerial Intervention was finalised in May 2017, and her options to remain in Australia were exhausted.
Having considered the available evidence, the Tribunal is not satisfied that the applicant has ever publicly expressed opinions critical of the Communist Party of Vietnam and the Vietnamese Government regarding their policies, treatment of certain minorities or in relation to any other matters, either in Vietnam or in Australia. The Tribunal does not accept that the applicant would do so if she returned to Vietnam.
Accordingly, the Tribunal finds there is not a real chance the applicant would suffer persecution involving significant harm from the Communist Party of Vietnam, the Vietnamese Government, and/or their authorities, agents or supporters, due to her actual or imputed political opinions, should she return to Vietnam.
Refugee criterion
Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from the Communist Party of Vietnam, the Vietnamese Government, and/or their authorities, agents or supporters, or any other agency, organisation, group or individual, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should she return to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[6]
[6] 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 Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from the Communist Party of Vietnam, the Vietnamese Government, and/or their authorities, agents or supporters, or any other agency, organisation, group or individual.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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).
Request for consideration under the Minister’s s.417 intervention power
The applicant has requested that the Tribunal refer her case to the Minister for consideration. The Tribunal may refer a case to the Department for consideration by the Minister pursuant to s.417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. In this case, the applicant has provided copies of birth certificates of her [young] children. She indicates that the children are Australian citizens and are in her care.
The Tribunal has considered the applicant’s case and the relevant ministerial guidelines relating to the discretionary power as set out in Departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
The Tribunal notes that the applicant previously has made an unsuccessful request for Ministerial intervention, but considers that her circumstances have changed in a significant and material way since that time, as she is now the mother of [several children]. All [children] are Australia citizens. While the applicant has not provided further details regarding her current relationship status, she has stated that these children are in her care, and it may be the case that she is caring for them as a single mother.
The Tribunal considers that this matter is one that comes within the relevant Ministerial guidelines for the purposes of intervention under s.417 of the Act, in particular:
·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
Having considered the applicant’s case and the relevant Ministerial guidelines, the Tribunal considers there is merit in this case and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
…

[2021] AATA 5122

19 November 2021

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