1826212 (Refugee)

1826212 (Refugee) [2024] AATA 2461 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826212
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Katherine Harvey
DATE:5 June 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 June 2024 at 9:11am

CATCHWORDS
REFUGEE – Protection Visa – Vietnam – failed to attend hearing – evidence is brief, highly generalised and not sufficiently detailed – attended a protest – fears from Vietnamese authority – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 441, 426,499
Migration Regulations 1994, 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 13 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 Vietnam, applied for the visa on 13 June 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.
On 18 October 2023, the Tribunal emailed the applicant using the email address he provided to the Tribunal and invited him to complete a pre-hearing information form within seven days. The applicant did not respond.
Noting that on 23 June 2023 the Tribunal was advised that the applicant had been remanded in custody in Victoria, and given that no response had been received to the email dated 18 October 2023, on 8 May 2024 the Tribunal emailed the Department of Home Affairs requesting an update so that the Tribunal could properly invite the applicant to a hearing.
On 8 May 2024, the Department advised that the applicant was no longer held in custody as he was released on 23 August 2023, matter finalised.
On 9 May 2024, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 24 May 2024 and to provide all documents he intended to rely on to support his case by 17 May 2024. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also requested that he provide his best contact telephone number as soon as possible, as it appeared that the Tribunal does not have a contact number for him.
On 16 May 2024, the applicant emailed the Tribunal from the same email address he had provided to the Tribunal advising that he had moved to Victoria and that he did not have the financial resources to travel to Adelaide. He provided his new address and asked that his case be transferred to Melbourne.
On 16 May 2024, the Tribunal invited the applicant to a hearing in Melbourne. Noting that the notice period was less than 14 calendar days, on 17 May 2024 the Tribunal wrote to the applicant asking if he consented to a shorter notice period that would allow him to appear in person on 23 May 2024 or by video on 24 May 2024.
On 20 May 2024, the applicant emailed the Tribunal and advised that he was unable to attend the hearing that week because he did not know how to prepare for the hearing due to his limited English. He requested an adjournment so that he could seek legal representation from a pro-bono lawyer in the Vietnamese community in Victoria.
The Tribunal carefully considered his request. Noting that the applicant applied for a review on 7 September 2018 and was advised that his file was being prepared on 18 October 2023, the Tribunal adjourned the hearing to a video hearing by MS Teams on 4 June 2024. The Tribunal provided the details of the Translating and Interpreting Service (TIS) on 131 450 for language assistance and again asked the applicant to provide his best contact telephone number as soon as possible.
On 29 May 2024, the Tribunal emailed the applicant advising that it had not received his response to the hearing invitation and requesting him to provide it as soon as possible.
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, I am satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and the email address was current as the applicant communicated with the Tribunal from that email address. At the time of the hearing, the Tribunal attempted to contact the applicant on the two telephone numbers in the material provided by the Department in its correspondence of 8 May 2024. One number appeared to be disconnected and the second went to voicemail three times. A message was left on the voicemail asking if he was attending the Tribunal hearing. No response was received by the time this decision was finalised. In these circumstances, and pursuant to s 426A of the Act, I have decided to make my decision on the review without taking any further action to 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The current country information report prepared by DFAT is the ‘DFAT Country Information Report Vietnam’ dated 11 January 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, I have concluded that the decision under review should be affirmed.
In his protection visa application, the applicant claimed to be a Vietnamese national who was born in [City 1], Vietnam. He did not provide any identity documents to support his claim. As recorded in the decision record, a copy of which the applicant provided to the Tribunal with his application for review, the applicant lodged an application for a subclass TU 573 Higher Education Sector visa on 6 May 2013, the visa was granted on 16 May 2013, he arrived onshore as the holder of a subclass TU 573 visa in May 2013 and the visa was cancelled on 24 December 2014 under this identity. Based on this evidence, I accept that he is a Vietnamese national and find Vietnam is his receiving country.
The applicant claimed that both parents were born in [City 1], Vietnam and are citizens of Vietnam and that he does not have the right to enter or reside in a country other than Vietnam. I find that s 36(3) of the Act does not apply to the applicant.
In his protection visa application, the applicant claimed that he had legally departed Vietnam in May 2013 using his Vietnamese passport and arrived in Australia on a valid visa. As recorded in the decision record, the applicant applied for a protection visa on 30 December 2017 and withdrew that application on 10 May 2018. He applied for a protection visa on 13 June 2018 that is the subject of this review.
In his protection visa application, the applicant claimed that he had experienced harm in Vietnam from the Vietnamese authorities because he protested against their inaction in relation to China’s invasion of the Spartly [sic] and Paracel islands. He claimed he did not seek help as ‘[t]here was no help’. He claimed he did not try to move to another part of the country as ‘[t]he same rule applies to all parts of Vietnam’. He claimed that if he returned to Vietnam he would be detained and questioned by the Vietnamese authorities, that he would be mistreated, that he would not get assistance from the authorities, and that many Vietnamese youth have been detained by the authorities for standing up for Vietnam against China’s invasion.
In his protection visa application, he provided details about his parents, older sister and younger brother and sister who all live in Vietnam. He also advised that he had a daughter [born] in Melbourne on [date] who was a Vietnamese citizen and not included in his application because he was unable to obtain her mother’s consent.
The applicant did not provide any attachments or supporting evidence with his application.
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 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 a 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 of the Act. 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).
I have significant problems with the applicant’s claims. The evidence presented by him is brief, highly generalised and not sufficiently detailed to allow me to be satisfied that he faces a real chance of persecution in Vietnam or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk that he will suffer significant harm.
The applicant has not given a full account of the circumstances surrounding his claims and they are extremely limited in nature. He has provided insufficient information about the timing, location and nature of the protests in which he claims to have participated and about what harm he claims to have experienced. Likewise, he provided insufficient evidence regarding his claims that the Vietnamese police would detain and question him. He has not provided information about how having a daughter affects his claims. He has not explained why he delayed in applying for a protection visa. I consider the information before me is not sufficiently detailed to enable me to be satisfied he faces a real chance of persecution in Vietnam or that there are substantial grounds for believing that there is a real risk he will suffer significant harm if removed to Vietnam.
I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk that the applicant will suffer significant harm.
Conclusion
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) or 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.
Katherine Harvey
Senior 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.
…

[2024] AATA 2461

5 June 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction