1826501 (Refugee) - [2024] AATA 2981

1826501 (Refugee) [2024] AATA 2981 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826501
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mary Sheargold
DATE:23 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 April 2024 at 11:34am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing – Vietnamese education system does not allow him and other students to exercise freedom of speech – insufficient information available to support his claims – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIAC v MZYYL (2012) 207 FCR 211
SZFDV v MIAC (2007) 233 CLR 51
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 28 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 July 2018. He has provided the Tribunal with a copy of the delegate’s decision in respect of his visa refusal, and his migration history set out in that decision is relevant and summarised as follows. [Mr A] first arrived in Australia on [date] November 2016 holding a Subclass 500 student visa. He returned to Vietnam for approximately 5 weeks in June and July 2017, before returning to Australia on [date] July 2017 holding the same student visa. Exactly 12 months later, on 23 July 2018, he made this application for a protection visa and was granted an associated Bridging Visa A on 7 August 2018.
On 7 March 2024, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 23 April 2024. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice.
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, the Tribunal is satisfied that s 441A(5), and that the invitation has not been returned to sender. In these circumstances,…

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.

Continue reading 1826501 (Refugee)

Details

AGLC: 1826501 (Refugee) [2024] AATA 2981
Case: [2024] AATA 2981
Decision Date: 23 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa application of Mr A, a national of Vietnam. Mr A failed to attend his scheduled hearing before the Tribunal, and consequently, the Tribunal made its decision based on the information available in his file. Mr A had minimal engagement with the Tribunal since lodging his application in September 2018, including failing to respond to a letter inquiring about his potential withdrawal of the application. He had not provided any further submissions or documentary evidence to support his original claims.

The legal issues before the Tribunal were whether Mr A met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution or a real risk of suffering significant harm if returned to Vietnam. The Tribunal was required to determine if Mr A had provided sufficient particulars and evidence to establish his claims, as per section 5AAA of the Migration Act 1958. This included assessing whether Vietnam could provide effective protection to Mr A and whether any risk of harm was faced by the population generally rather than personally by Mr A.

The Tribunal reasoned that it was Mr A's responsibility to provide sufficient evidence to support his claims, and he had failed to do so. His claims centred on the Vietnamese education system's restrictions on freedom of speech and association, and the perceived danger of fighting for human rights in Vietnam. However, without his attendance at the hearing or any further evidence, the Tribunal could not be satisfied that Mr A had a well-founded fear of persecution or a real risk of significant harm. The Tribunal noted that under section 36(2B)(b) of the Act, a real risk of significant harm is not taken to exist if the applicant could obtain protection from an authority of the country. Given Mr A's lack of engagement and evidence, the Tribunal found that he had not satisfied the criteria for a protection visa.

The Tribunal affirmed the decision not to grant Mr A a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

[Mr A]’s Vietnamese nationality is not in issue. He provided a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, valid from [date] 2016 to [date] 2026. The Department accepted his claimed identity and nationality set out in his passport, as does the Tribunal. The Tribunal finds that Vietnam is [Mr A]’s receiving country for the purposes of assessing his protection claims.Relevant background, claims and evidence [Mr A] failed to attend his scheduled hearing before the Tribunal. Therefore, the Tribunal had utilised the information available in [Mr A]’s Tribunal file to make its decision. Since lodging this application on 11 September 2018, [Mr A] has had minimal engagement with the Tribunal. Notably, on 14 March 2019, the Tribunal wrote to [Mr A] stating that on 7 March 2019, the Tribunal had been notified by the Department that [Mr A] had indicated his desire to withdraw his protection visa application, and the Tribunal requested completion of the Tribunal’s withdrawal form if this was the case. However, [Mr A] gave no response to this letter. [Mr A] has not made any submissions setting out any claims, nor has he provided any documentary evidence to the Tribunal to support the claims he made in his original protection visa application. There is no evidence to indicate that [Mr A] had been invited to an interview prior to the delegate making their decision. The delegate’s decision record does faithfully particularise [Mr A]’s claims set out in his application form. In summary, [Mr A] claims that he left Vietnam because the Vietnamese education system does not allow him and other students to exercise freedom of speech and freedom of association, or rights to organise. He stated that the social and political situation in Vietnam was becoming increasingly complicated and dangerous for him to return and fight for human rights, that if forced to return to Vietnam, he will “strongly use” and prove his freedom of speech to express his thoughts, his opinions, and viewpoint, and that he will be harmed and mistreated if he does so because the ruling Communist Party always ill-treats peaceful protests, since their foundation until now. [Mr A] also claimed that he cannot seek protection from the authorities, because the authorities are members of the Communist Party as well, and so could not protect him. He claims he will only be able to safely relocate within Vietnam when the “dictatorial regime” of the Communist Party is deposed. Well-founded fear of persecution Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

Evidence

Evidence Before The Court

The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.CONSIDERATION OF CLAIMS AND EVIDENCEReceiving country [Mr A]’s Vietnamese nationality is not in issue. He provided a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, valid from [date] 2016 to [date] 2026. The Department accepted his claimed identity and nationality set out in his passport, as does the Tribunal. The Tribunal finds that Vietnam is [Mr A]’s receiving country for the purposes of assessing his protection claims.Relevant background, claims and evidence [Mr A] failed to attend his scheduled hearing before the Tribunal. Therefore, the Tribunal had utilised the information available in [Mr A]’s Tribunal file to make its decision. Since lodging this application on 11 September 2018, [Mr A] has had minimal engagement with the Tribunal. Notably, on 14 March 2019, the Tribunal wrote to [Mr A] stating that on 7 March 2019, the Tribunal had been notified by the Department that [Mr A] had indicated his desire to withdraw his protection visa application, and the Tribunal requested completion of the Tribunal’s withdrawal form if this was the case. However, [Mr A] gave no response to this letter. [Mr A] has not made any submissions setting out any claims, nor has he provided any documentary evidence to the Tribunal to support the claims he made in his original protection visa application. There is no evidence to indicate that [Mr A] had been invited to an interview prior to the delegate making their decision. The delegate’s decision record does faithfully particularise [Mr A]’s claims set out in his application form. In summary, [Mr A] claims that he left Vietnam because the Vietnamese education system does not allow him and other students to exercise freedom of speech and freedom of association, or rights to organise. He stated that the social and political situation in Vietnam was becoming increasingly complicated and dangerous for him to return and fight for human rights, that if forced to return to Vietnam, he will “strongly use” and prove his freedom of speech to express his thoughts, his opinions, and viewpoint, and that he will be harmed and mistreated if he does so because the ruling Communist Party always ill-treats peaceful protests, since their foundation until now. [Mr A] also claimed that he cannot seek protection from the authorities, because the authorities are members of the Communist Party as well, and so could not protect him. He claims he will only be able to safely relocate within Vietnam when the “dictatorial regime” of the Communist Party is deposed. Well-founded fear of persecution Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

Decision

Reasons for decision

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.Mary SheargoldMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].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. The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.CONSIDERATION OF CLAIMS AND EVIDENCEReceiving country [Mr A]’s Vietnamese nationality is not in issue. He provided a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, valid from [date] 2016 to [date] 2026. The Department accepted his claimed identity and nationality set out in his passport, as does the Tribunal. The Tribunal finds that Vietnam is [Mr A]’s receiving country for the purposes of assessing his protection claims.Relevant background, claims and evidence [Mr A] failed to attend his scheduled hearing before the Tribunal. Therefore, the Tribunal had utilised the information available in [Mr A]’s Tribunal file to make its decision. Since lodging this application on 11 September 2018, [Mr A] has had minimal engagement with the Tribunal. Notably, on 14 March 2019, the Tribunal wrote to [Mr A] stating that on 7 March 2019, the Tribunal had been notified by the Department that [Mr A] had indicated his desire to withdraw his protection visa application, and the Tribunal requested completion of the Tribunal’s withdrawal form if this was the case. However, [Mr A] gave no response to this letter. [Mr A] has not made any submissions setting out any claims, nor has he provided any documentary evidence to the Tribunal to support the claims he made in his original protection visa application. There is no evidence to indicate that [Mr A] had been invited to an interview prior to the delegate making their decision. The delegate’s decision record does faithfully particularise [Mr A]’s claims set out in his application form.