1824835 (Refugee) [2024] AATA 1133 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1824835
COUNTRY OF REFERENCE: Vietnam
MEMBER:David James
DATE:8 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 January 2024 at 12:11pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam –actual / imputed political opinion – anti-Cambodian government –failure of the applicant to provide any detailed evidence and/or documents in support of his claims –applicant’s fears of persecution are not well-founded – delay in applying for protection in Australia – decision under review affirmed
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 dependants.
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 (Cth) (the Act).
The applicant, who claims to be a citizen of the Socialist Republic of Vietnam (Vietnam), applied for the visa on 5 June 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 27 August 2023. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1824835 (Refugee) [2024] AATA 1133
Case
[2024] AATA 1133
Decision Date
CaseChat Overview and Summary
The applicant, a citizen of Vietnam, sought review of a decision to refuse his protection visa application. The dispute centred on whether the applicant had a well-founded fear of persecution or a real risk of significant harm if returned to Vietnam, based on his alleged online political opinions critical of the Vietnamese government. The applicant had not requested an oral hearing and consented to the Tribunal making a decision based on the documents provided.
The primary legal issues before the Tribunal were whether the applicant possessed a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and whether there was a real chance of such persecution upon return to Vietnam. Alternatively, the Tribunal considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, the applicant would suffer significant harm as defined in section 36(2A) of the Act. The Tribunal was required to consider relevant country information, including assessments by the Department of Foreign Affairs and Trade (DFAT) concerning political opinion, online activism, and the treatment of returnees.
The Tribunal reasoned that the applicant had failed to provide sufficient detailed evidence to substantiate his claims of persecution. While acknowledging that online activism in Vietnam is monitored and can attract attention, the Tribunal found, based on the provided country information, that low-level online activity by individuals with little public profile was unlikely to result in persecution. The Tribunal noted that while a repeated pattern of online activity could attract attention, the applicant's own account suggested only low-level engagement. Furthermore, the Tribunal found no evidence to suggest that the applicant's specific online criticisms would place him at a real risk of persecution or significant harm. The Tribunal applied the established legal principles regarding the assessment of well-founded fear and real risk, referencing the standard set in *MIAC v SZQRB* (2013) 210 FCR 505.
The Tribunal affirmed the delegate's decision to refuse the protection visa. The applicant's fears were not considered well-founded, and there were no substantial grounds to believe he would suffer significant harm upon return to Vietnam.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vietnam, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application submitted on 5 June 2023;·A copy of the applicant’s expired Vietnamese passport, issued on [in] 2012 with an expiry date of [date] 2022, forwarded by email to the Tribunal by the applicant on 17 May 2023;·A copy of the applicant’s current Vietnamese passport, issued on [date] 2022 with an expiry date of [date] 2032, forwarded by email to the Tribunal by the applicant on 17 May 2023;·The applicant’s application for review of 27 August 2018 and the annexed decision record of 1 August 2018;·The administrative and movement records of the Department relating to the applicant;·The applicant’s email correspondence to the Tribunal of 23 August 2023, in which he states that:I would like the Member to affirm my case, so that I can take my migration matter request for Ministerial intervention, to intervene in my case, as I am currently in a married relationship and have a common child from my relationship with an Australian Citizen.·The applicant’s completed ‘pre-hearing information form’, emailed to the Tribunal on 12 October 2023, in which he indicated that he did not want to have a hearing and consents to the Tribunal making a decision on the papers without inviting him to a hearing of his case.Claims for protection In his protection visa application, the applicant stated that he left Vietnam to study in Australia and that he did not experience any harm in Vietnam. His claims for protection, as summarised below are that:·He believes that if he was to return to Vietnam he would be arrested at the airport and would be subjected to persecution because of his political opinions that he has publicly published online;·The Vietnamese police would cause trouble to him and his family in the form of violence, and they might also arrest or detain him and/or damage his property because of his political opinions. He has seen the mistreatment of people who have expressed their opinions online and he does not want to experience the same as the Vietnamese government blatantly violate human rights and have no regard for any rights that an individual may have mentally or physically;·As he has criticised the authorities in Vietnam, it is very unlikely they will provide any protection to him; and·He cannot relocate as his [social media] page will follow him and it is also likely that the authorities have him on their records as he has shared so many articles and expressed unfavourable opinions about the Vietnamese Government.Summary of the applicant’s visa history
Decision
Reasons for decision
The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 1 August 2018 to refuse the protection visa was made on the information before the delegate. The delegate found that by the applicant’s own account, he had only engaged in low-level political activity via [social media] and that such behaviour was highly unlikely to be of adverse interest to the Vietnamese government. The delegate further found that there was no information before them to suggest that merely protesting against government policies on [social media], as the applicant claims to have done would bring him to the attention of the Vietnamese authorities. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Hearing On 5 October 2023, the Tribunal wrote to the applicant via email informing him that his matter was being prepared so as it could be given to a Tribunal Member. This email attached a ‘Pre-hearing information form’ and requested that the applicant complete this form and return it to the Tribunal within 7 days. On 12 October 2023, the applicant returned their ‘Pre-hearing information form’ to the Tribunal by email, indicating, as outlined above at paragraph 15, that he did not want to have a hearing, and consented to the Tribunal making a decision on the papers without inviting him to a hearing of his case.Country information The Tribunal has taken into account the DFAT Country Information Report Vietnam, 11 January 2022, as relevant, including the information under the heading of ‘Political Opinion (Actual or Imputed’ at 3.49 to to 3.57, where it is reported at 3.56 and 3.57 that:Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.Under the heading of ‘Online activists and social media users’ at 3.61 to 3.64, it is reported that:Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention. Under the heading of ‘Treatment of Returnees’ and the sub-heading of ‘Exit and entry procedures’ at 5.25 to 5.28, it is reported at 5.26 that:Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs. Under the further sub-heading of ‘Conditions for returnees’ at 5.29 to 5.35, it is reported at 5.31, 5.34 and 5.35 that:DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.And under the heading of ‘Passports’ at 5.41, it is reported that:Passports are obtained by application to the Immigration Department of the MPS, at either the Central level (in Hanoi) or the Central-City level (in Hanoi, Danang and HCMC). Applicants outside these cities apply by post (those who are abroad would contact the nearest diplomatic mission). Applicants must provide their identity card or birth certificate, an application form and two recent passport photos. MPS reviews the application in consultation with authorities in the province who verify the applicant’s identity. The process officially takes five to eight working days. Ordinary passports are valid for 10 years for individuals aged 14 years or over, and five years for children aged under 14 years. FINDINGS AND REASONS
Ratio Decidendi
Legal Principle Established
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vietnam, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application submitted on 5 June 2023;·A copy of the applicant’s expired Vietnamese passport, issued on [in] 2012 with an expiry date of [date] 2022, forwarded by email to the Tribunal by the applicant on 17 May 2023;·A copy of the applicant’s current Vietnamese passport, issued on [date] 2022 with an expiry date of [date] 2032, forwarded by email to the Tribunal by the applicant on 17 May 2023;·The applicant’s application for review of 27 August 2018 and the annexed decision record of 1 August 2018;·The administrative and movement records of the Department relating to the applicant;·The applicant’s email correspondence to the Tribunal of 23 August 2023, in which he states that:I would like the Member to affirm my case, so that I can take my migration matter request for Ministerial intervention, to intervene in my case, as I am currently in a married relationship and have a common child from my relationship with an Australian Citizen.·The applicant’s completed ‘pre-hearing information form’, emailed to the Tribunal on 12 October 2023, in which he indicated that he did not want to have a hearing and consents to the Tribunal making a decision on the papers without inviting him to a hearing of his case.Claims for protection In his protection visa application, the applicant stated that he left Vietnam to study in Australia and that he did not experience any harm in Vietnam. His claims for protection, as summarised below are that:·He believes that if he was to return to Vietnam he would be arrested at the airport and would be subjected to persecution because of his political opinions that he has publicly published online;·The Vietnamese police would cause trouble to him and his family in the form of violence, and they might also arrest or detain him and/or damage his property because of his political opinions. He has seen the mistreatment of people who have expressed their opinions online and he does not want to experience the same as the Vietnamese government blatantly violate human rights and have no regard for any rights that an individual may have mentally or physically;·As he has criticised the authorities in Vietnam, it is very unlikely they will provide any protection to him; and·He cannot relocate as his [social media] page will follow him and it is also likely that the authorities have him on their records as he has shared so many articles and expressed unfavourable opinions about the Vietnamese Government.Summary of the applicant’s visa history