1827109 (Refugee)

[2020] AATA 5486

1827109 (Refugee) [2020] AATA 5486 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827109

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Paul Windsor

DATE:26 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 November 2020 at 4:38pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – no claims to fear of persecution – unique or exceptional circumstances – partner visa application previously refused – father to twins, both whom were stillborn – father to a third child with Australian citizen partner – serious, ongoing and irreversible harm and continuing hardship – lengthy separation with wife and child – compassionate circumstances – health and/or psychological state of wife – best interests of the child – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 August 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 9 July 2018.

3. In his protection visa application the applicant indicated that he was born in Hai Duong province Vietnam on [date], and is of Kinh ethnicity.  He indicated that he was married [in] August 2017 to [Ms A] and that they had twins, a daughter [Child B] and a son, [Child C], who were stillborn on [date] (birth certificates were provided for both children).  The application states that the applicant departed Vietnam legally [in] December 2008 and arrived in Australia [in] December 2008, entering on a student visa.  The applicant indicated that he previously has been refused a subclass 820 visa and that this decision was affirmed by the Tribunal.[1]

   [1] See the Departmental file.

4. In his protection visa application the applicant indicated that he cannot return to Vietnam because he and his wife had twin babies but lost them, which was a big shock for both he and his wife.  He stated that his wife, who is living in Australia (he stated she is an Australian citizen) is ‘so week’ (sic) and is depending on him.  He indicated that he fears his wife could hurt herself or will be dead if she has to live without him, and that he wants to ‘belong’ to her and take care of her.  The applicant indicated that he did not experience harm in Vietnam and does not consider that he would be harmed if he returned to Vietnam.[2]

   [2] See the Departmental file.

5. The delegate refused to grant the visa, finding in relation to the refugee criterion that the applicant has not claimed to fear harm in Vietnam, and there is no information to suggest he will be targeted on his return to Vietnam for one or more of the reasons mentioned in s.5J(a)(a) of the Act.  In relation to the complementary protection criterion, the delegate found the applicant had not indicated, nor is it evident, that he fears harm on return to Vietnam.  Notwithstanding this, and noting the applicant responded ‘no’, to a question in the application regarding whether he thought the authorities can and will protect him if he goes back to Vietnam, the delegate addressed the issue of state protection.  After considering relevant country information, the delegate found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm as outlined in s.36(2B)(b) of the Act.

6. The applicant sought review of this decision on 17 September 2018.  He provided the Tribunal with a copy of the delegate’s decision record.[3]

   [3] See the Tribunal file.

7. On 12 June 2020 the applicant appointed a representative.  The representative wrote to the Tribunal on the same day indicating that the applicant requests that the AAT affirm the delegate’s decision to refuse to grant him a protection visa.  He indicated this is because the applicant’s life circumstances have changed as he is in a relationship with an Australian resident and they now have a daughter together.  The representative commented ‘We will request that the presiding Member make a referral or recommendation for ministerial intervention on this matter instead. This is because my client has considerable and compelling reasons to remain in Australia on different grounds.’  The representative provided a copy of a birth certificate indicating that [Child D], born [date], is the child of the applicant and [Ms A].

8. On 30 October 2020 the representative provided written confirmation from the applicant, in a letter dated 29 October 2020, that he wishes to forfeit his right to a hearing and seeks ‘an affirmation of the Department decision’.  The applicant commented that he ‘would like to request that the presiding Member make a referral or recommendation for ministerial intervention on this matter instead’, adding that ‘This is because I have considerable and compelling reasons to remain in Australia on different grounds’.

9. Given the applicant’s clear instructions in this matter indicating that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it, this matter has been determined on the evidence available to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Findings and reasons

    Identity

16. On the basis of the copy of his passport submitted to the Department,[4] the Tribunal accepts that the applicant is a citizen of Vietnam and that his identity is as claimed.  The Tribunal accepts that Vietnam is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Issues

    [4] See the Departmental file.

17. 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 him being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.

18. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    Assessment of claims

    No claims to fear persecution involving serious harm or to face a real risk of significant harm in Vietnam

19. The applicant did not make any claims in his protection visa application to fear harm or to face a real chance of suffering serious harm or a real risk of suffering significant harm, from any authority, organisation, group or person, should he return to Vietnam or be removed to Vietnam.  He indicated that he did not experience harm in Vietnam and does not consider that he would be harmed if he returned to Vietnam.

20. As the applicant has not indicated that he suffered harm in the past or believes he would be harmed if he returned to Vietnam, the Tribunal finds that he does not require the protection of the Vietnamese authorities should he return to Vietnam.

    Does the applicant have a well-founded fear of persecution if he returned to Vietnam?

21. Having considered the applicant’s statements, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from any authority, organisation, group or person for any of the five reasons mentioned in s.5J(1)(a) of the Act, if he was to return to Vietnam, now or in the foreseeable future.

22. 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

23. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

24. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him 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.[5]

    [5] 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].

25. Having considered the applicant’s statements, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from any authority, organisation, group or person.

26. 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

27. 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, he does not satisfy the criterion in s.36(2).

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Referral to the Department for consideration of possible Ministerial intervention

29. The applicant has requested that the Tribunal refer the 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.

30. The applicant’s particular circumstances relevant to the exercise of the discretion may be summarised as follows:

    ·The applicant previously applied for a combined subclass 820/801 Partner visa in relation to a claimed previous partner relationship.  On 14 January 2015 a delegate of the Minister refused to grant the applicant a Class BS subclass 801 Partner visa.   This decision was affirmed by the Tribunal [in] June 2016.  While the applicant sought judicial review of the Tribunal’s decision, the matter was dismissed on 24 October 2016.[6]

    ·The available information indicates that the applicant and [Ms A] were married [in] August 2017.  On 4 December 2017 [Ms A] gave birth to twins, both of whom were stillborn.  The applicant is listed on their birth certificates as the father.[7]

    ·While no supporting medical records or statement from [Ms A] have been provided, the Tribunal considers this would have been extremely traumatic for both [Ms A] and the applicant, and may well have had a deleterious effect on [Ms A]’s mental state.

    ·On [date] [Ms A] gave birth to a third child (a daughter, [Child D]) with the applicant.  The applicant has provided a copy of the birth certificate which lists the applicant as the father of this child.

    [6] See Tribunal file 1500674.

    [7] See the Tribunal file.

31. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’.  While there is an offshore visa pathway available to the applicant, this would likely result in a lengthy separation of the applicant and his wife and child which could have a detrimental effect on [Ms A]’s health and the welfare of their daughter.  Accordingly, the Tribunal considers it is appropriate for the Minister to consider intervening in this matter for the following reasons relevant to the Minister’s guidelines:

    ·There appear to be strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen ([Ms A] and her daughter [Child D]) or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

    ·There appear to be compassionate circumstances regarding the health and/or psychological state of the person ([Ms A]) that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person; and

    • There appear to be circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child of [Ms A] and the applicant.

32. Accordingly, the Tribunal will refer this matter to the Department as a case that has one or more unique or exceptional circumstances, which may be referred to the Minister for possible consideration of the use of the Minister’s intervention powers.

    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.

    …