1828209 (Refugee) - [2019] AATA 1413

1828209 (Refugee) [2019] AATA 1413 (31 May 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division
CASE NUMBER:  1828209
COUNTRY OF REFERENCE:                  Vietnam
MEMBERS:Deputy President Jan Redfern (Presiding)

Darren Renton, Member
DATE OF DECISION:  31 May 2019
DATE CORRIGENDUM
SIGNED:17 June 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following correction is made to the decision:
In paragraph [58](1), the word “It” be replaced with “If”, so that the text of the decision reads as follows:
“(1) If the applicant returns there is a real risk authorities will become aware of this and resume their investigations.”

Jan Redfern
Deputy President

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1828209
COUNTRY OF REFERENCE:                  Vietnam
MEMBERS:Deputy President Jan Redfern (Presiding)

Darren Renton, Member
DATE:31 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 31 May 2019 at 1:45 PM

CATCHWORDS

MIGRATION – Refugee and Humanitarian (Refugee)(Class XA)(Subclass 866) visa – s36(2)(aa) Migration Act – Vietnam – protection obligations under complementary protection criteria – real chance test – significant harm – indictment- embezzlement – death penalty – remit with direction.

LEGISLATION

Migration Act 1958 (Cth) ss 5, 36, 65, 499

Criminal (Penal) Code 1999 (Vietnam), Article 7, 139, 179, 278, 279, 281

Criminal (Penal) Code 2015 (Vietnam), Article 12, 27, 40, 253, 354

CASES

BUD17 v Minister for Immigration and Border Protection [2017] FCCA 2325

BUD17 v Minister for Home Affairs [2018] FCAFC 140

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 55

SZGIZ v MIAC (2013) 212 FCR 235

Thi Dan and Other (Case no 187/2018/HS-ST)

SECONDARY MATERIALS

Ministerial Direction No. 56

DFAT Country Information Report, Vietnam, 21 June 2017

Procedures Advice Manual – PAM3 ‘Refugee and humanitarian – Complementary Protection Guidelines’

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

BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age] year old male born in Vietnam. He first arrived in Australia on 10 October 2010 using a Vietnamese passport on a visitor visa which remained in effect until 24 October 2010. On 30 July 2011 the applicant was stopped by NSW police for a traffic offence and detained as a visa over stayer pursuant to s.189 of the Act and transferred to [a] Immigration Detention Facility at that time. He was subsequently transferred to [another detention centre] where he has been in detention since his transfer.
The applicant…

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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Details

Case: [2019] AATA 1413
Decision Date: 31 May 2019

CaseChat Overview and Summary

The applicant, a citizen of Vietnam, sought review of a decision by the Minister to refuse to grant a protection visa (subclass 866). The applicant claimed to face persecution in Vietnam due to allegations of embezzlement, for which the death penalty was a possible consequence. The Minister's decision was based on the assessment that the applicant did not meet the criteria for protection under section 36(2)(aa) of the *Migration Act 1958* (Cth), which relates to complementary protection. The matter came before Deputy President Jan Redfern of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had established a real chance of suffering significant harm if returned to Vietnam, thereby engaging Australia's protection obligations under the complementary protection criteria. This required the Tribunal to assess the credibility of the applicant's claims regarding the embezzlement charges and the potential severity of the consequences, including the possibility of the death penalty.

Deputy President Redfern applied the "real chance" test, which requires a finding that there is a real chance, as opposed to a mere possibility, that the applicant would suffer significant harm. The Tribunal considered the evidence presented by the applicant concerning the embezzlement allegations and the Vietnamese legal system's approach to such offences. After reviewing the material, the Tribunal found that the applicant had established a real chance of suffering significant harm.

Consequently, the Tribunal remitted the application to the Minister with a direction that a protection visa (subclass 866) be granted to the applicant.

Orders