1831471 (Refugee)

[2024] AATA 1583

1831471 (Refugee) [2024] AATA 1583 (14 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:        Unrepresented

CASE NUMBER:  1831471

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Kate Chapple

DATE:14 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 14 March 2024 at 9:53am

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – anti-government opinions and economic conditions – membership of particular social group – domestic violence, divorce and threats from ex-husband – period as unlawful non-citizen – application prepared by another person without applicant’s knowledge of contents – claim on political ground not relied on and claim on domestic violence ground limited to evidence given at hearing – country information – prevalence of domestic violence, laws and inconsistent police response – uncontested and contested divorce procedures – claim of domestic violence accepted – limited contact and no evidence of violence since divorce and ex-husband living in different area – applicant’s partner and child in Australia, with partner’s application for protection visa in progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

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.

EVIDENCE BEFORE THE TRIBUNAL

Protection visa application

1. Protection visa application lodged 8 June 2018 settling out the following claims (spelling and grammatical errors not corrected):

   [reason applicant left Vietnam] After leaving school, getting married and works, very often disagreed with current work laws and government laws. Objected to Communist government laws, and really wanted change other government, but the Communist only have one party, the people in the country have no option and must be silent, but I’m not. After divorced, my former husband often threaten to “kill me”, but I had no choice to divorce, and daily violence from former husband with threaten of kill, become stressful and scaring for my safety, life and also for children. I had no choice to seek abroad for a better life, and support children and parents.

   [what applicant thinks will happen to her if she returns to Vietnam] First to the government will ignored, mistreat, will be difficulty for living or even seek other part if country, will have no different. As a result will be difficult for seeking jobs and always object to current Communist policies. Former husband will follow to threaten kill as before as very scary to face him, as he’s always awaiting for me to return.

   [harm experienced by applicant in Vietnam] As mentioned above, the government ignored/mistreat, difficulty for current job before, can not live in the current government of Vietnam. Former husband daily threat to kill.

   [reasons applicant didn’t seek help in Vietnam] As mentioned above with Communist government, every part of the country is the same laws running. Not any better situations, and corruption, no financial supports.

   [reasons applicant didn’t relocate to another part of Vietnam to seek safety] As above, there would be no better results and no financial supports.

   [harm or mistreatment applicant thinks she’ll likely experience if she returns to Vietnam] Will be ignored/mistreated and also former husband threaten to kill. Will be so stressful to face the above situations.

   [reason applicant thinks Vietnamese authorities can’t and won’t protect her] Current Communist government will never offer protection like myself, and they have not spend any fund for this protection scheme, and will not pay any of this issues.

   [reason applicant can’t relocate within Vietnam to an area where she would not be harmed] Any part of the country would be the same, and everywhere corruption, no financial supports.

2. Translated Socialist Republic of Vietnam People’s Court Nha Trang City Khanh Hoa Province No: [Reference] Date: [2016] In re “Disputes on divorce and child custody” relating to the marriage and children of the applicant and her former husband.

3. Decision record dated 19 October 2018 relating to the delegate’s refusal decision.

4. Departmental audio file dated 24 August 2018 relating to the interview with the applicant.

5. Departmental case file relating to the applicant.

   Application for review

6. Application for review lodged 26 October 2018.

7. The Tribunal wrote to the applicant inviting her to attend a hearing on 13 March 2024 and to provide pre-hearing submissions.

8. Prior to the hearing, the applicant provided to the Tribunal confirmation that she intended to participate in the hearing, and a request that the Tribunal take witness evidence from two witnesses both described as her employer. The applicant did not provide any documents or submissions.

   The Hearing

9. The applicant and witnesses appeared before the Tribunal at a hearing conducted in person on 13 March 2024, with the assistance of an interpreter (in person) in the Vietnamese and English languages. The applicant was unrepresented.

10. The applicant gave evidence, summarised by the Tribunal as follows:

    10.1.The applicant was born in [Year] in Tuy Hoa city, Phu Yen province where she grew up with her parents. She has no siblings. Her father, now aged [Age], worked for [a company], and her mother, now aged [Age], ran a home-based business and did home duties. They are both retired and living in the same place. Her father does some odd jobs locally, but only enough to pay for his morning coffee. She sends money from her earnings in Australia to help support them.

    10.2.The applicant completed 12 years of schooling and [a] degree at university. She graduated from university in [Year] and married almost straight away. Before the marriage, her husband was a self-employed [Occupation 1], [doing a job task]. Once married, he stopped working, and the responsibility fell to the applicant to earn money to support them and their [two children]. She mainly worked in [Workplaces]. For about three weeks after her daughter was born, the applicant did some [Occupation 2] work for a private business; she thought this would be good experience for getting [an Occupation 2] job in the future, however that never eventuated.

    10.3.The applicant doesn’t know why her husband stopped working and never worked throughout the marriage. His parents tried to talk to him about it, but he wouldn’t listen. This was a big burden on her. She got on okay with his parents, but culturally she had responsibilities to them as a daughter-in-law, as well as the responsibility of caring for her children and being the sole income earner in the family. She felt this burden even more so when the husband’s mother was injured in an accident and bed-bound for about three years until she died.

    10.4.The financial burden was the main catalyst for the breakdown of the marriage. Over time, the husband also began mistreating her. She suspected he was using ice. When she came home from work, he would demand sex, and when she refused, he would accuse her of having another man; sometimes he would throw things at her and hit her. The second child was an accident.

    10.5.One evening, on her way home from work after collecting her younger child, the applicant’s husband assaulted her on the tourist strip. He was on a scooter and cut her off, then threw his helmet at her face causing it to become very swollen. Many people gathered to look but no one helped her. She rang a friend for help, then the husband accused her of dating the friend, and said it was a domestic matter and not his business. The husband grabbed the child and took him home. The friend cautioned her that if she went home worse things could happen, so she stayed with the friend overnight. Next morning, her father took her to see the husband and collected the youngest child, and they returned to stay with the applicant’s parents. The older child remained with the husband because she had to go to school. The applicant heard some time afterwards that on the night of the assault, the applicant’s husband paced in front of the children with a knife in his hand saying that if the applicant came home, he would kill her. Following the assault, the applicant stayed for a while with her parents then moved in with an aunt because she needed to be close to her work. She never again lived with the husband. The aunt’s house was also close to the husband, however he didn’t know the address. The husband didn’t allow the applicant to see her daughter. It was at that time that the applicant had come to the end of the road with the marriage, being bullied at work by the older workers, and not earning enough money to support the family.

    10.6.The applicant had heard about friends and family members who had come to Australia. Her mother was encouraging her to get away. She did it to please her mother because she wasn’t earning enough money in Vietnam to support the family. The applicant went to a travel agent who applied for the visa on her behalf; the process went very smoothly. She doesn’t know what visa she got to come to Australia, but it was for three months.

    10.7.The applicant’s husband called her a couple of months after she arrived in Australia. The older child was still living with him, and he asked the applicant to send money for her support; the applicant declined.

    10.8.The applicant’s younger child has lived with the grandparents since the assault. The older child continued to live with the husband for a time while the applicant’s mother paid for her schooling and other expenses, then when she finished school, she too went to live with the grandparents.

    10.9.The applicant got farm work about a month after arriving in Australia. She stayed on after the expiration of her visa. She knew that it was unlawful to be here without a visa, and she knew that if she was caught, she would be sent back to Vietnam. However, she took the risk, and kept working because she had her children in Vietnam to support.

    10.10.The applicant’s marriage ended when she was in Australia. The Tribunal referred to the translated divorce document dated [2016]. The applicant believes it would have been very difficult for her to get a divorce had she been in Vietnam as her husband would likely not have agreed. Her mother pleaded with her husband to sign the papers so the applicant could stay in Australia and earn money to send home to support the children.

    10.11.After three years of being unlawful, the applicant was scared of being caught and didn’t want to hide any more. She wanted to be in Australia and able to work legally. She didn’t know about protection visas until her employer at the time referred her to someone in Melbourne who could help her. She sent him photos of her documents and some money, and generally explained her circumstances, and he prepared the application for her. He didn’t explain to her what a protection visa is or what he put in her application. If she had known about protection visas earlier, she would have applied, but she didn’t speak English and she didn’t know anyone who could advise her.

    10.12.The Tribunal referred to the protection visa application and read out the applicant’s written claims. The applicant said the claim relating to her objection to the Communist government was not her claim, and that she was not relying on that claim. As to the claim relating to her former husband, the applicant said she relies on the evidence she has given in the hearing, and not the written claim that “after divorce, my former husband often threaten to kill me”. 

    10.13.The applicant’s husband lives in Nha Trang,120 kilometres from where her parents and children live. He may call the children every couple of years, but there’s no other contact. He has had no contact with her parents other than early on when he needed money. The applicant has had no contact with him since his call soon after she arrived in Australia asking her to send money. The husband has a girlfriend. The applicant’s daughter told her that the husband hadn’t remarried because he was waiting for the applicant to return.

    10.14.The applicant is still afraid of her former husband. She doesn’t know what he is thinking, but she knows his character. She was only able to divorce him because she wasn’t in Vietnam.

    10.15.The applicant sends about $3,000 to $4,000 to her parents every three to four months to support them and her children. The applicant works full-time [doing job task 2] on a farm in [City]. She has a partner who also works on the farm; he is a [Country] national also applying for protection, and they have a [Child] together.

    10.16.The Tribunal referred to the witnesses the applicant had nominated in her hearing response and asked her what they would be giving evidence about. The applicant said they would talk about her employment with them. The Tribunal explained to the applicant that the review application and hearing were about whether she meets the requirements of a protection visa, and that a protection visa is a very specific type of visa to protect people who face a real chance of targeted persecution in their home country, not to protect from economic hardship or to allow a person to work and earn money in Australia. The Tribunal therefore pointed out that evidence in relation to her employment was not relevant to the visa requirements. The applicant elected not to call the witnesses.

    10.17.The applicant asked the Tribunal whether she needed to apply for a different type of visa. The Tribunal said that it was unable to give her advice, and that she should seek advice from a migration agent or a lawyer. The Tribunal indicated to the applicant that, based on the information she had provided, it has significant concerns about whether she satisfies the requirements for the grant of a protection visa.

    Country information

11. Domestic violence targeting women remains pervasive. Domestic violence is common and is culturally often seen as a normal part of married life.[1] Statistics on prevalence of intimate partner violence vary, some sources indicate 62-63 per cent of women have experienced a form of violence and abuse from their partner.[2] A 2019 study suggest that rate of physical violence may be closer to one in four women, or 26.1 per cent.[3] The same 2019 study suggested that one in three women aged between 15 and 64 experienced some sort of physical or sexual violence in their lifetime, amounting to 32 per cent of women.[4] Studies suggest there was an increase in domestic violence throughout the COVID-19 pandemic whereby nationwide isolating measures confined people to their homes.[5] From a study of 303 women, 99 per cent endued intimate violence during the lockdowns, and 84 per cent experienced more violence than before COVID-19 measured.[6] The United Nations Population Fund (UNFPA) supported 24-hour hotline saw a double to triple increase of calls during COVID-19 for help regarding domestic violence.[7]

    [1] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.75, p.22; ‘Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 29

    [2] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.75, p.22; 'A new toll-free hotline providing care and support is now accessible for rural w omen at risk of violence in Vietnam, and UNFPA hands over its dignity kits to COVID-19 hit HCMC and 4 provinces', UNFPA Vietnam, 15 December 2021

    [3] 'National Study on Violence against Women in Viet Nam 2019', Ministry of Labor, Invalids and Social Affairs (Vietnam), General Statistics Office of Vietnam (GSO), United Nations Population Fund (UNFPA), 13 August 2020, p. xvi

    [4] 'National Study on Violence against Women in Viet Nam 2019', Ministry of Labor, Invalids and Social Affairs (Vietnam), General Statistics Office of Vietnam (GSO), United Nations Population Fund (UNFPA), 13 August 2020, p. xvi

    [5] 'Domestic violence under the impact of COVID-19', Institute for Social Development Studies, Rosa Luxemburg Stiftung – Hanoi , 1 September 2020, p. 6

    [6] 'Domestic violence under the impact of COVID-19', Institute for Social Development Studies, Rosa Luxemburg Stiftung – Hanoi , 1 September 2020, p. 6

    [7] A new toll-free hotline providing care and support is now accessible for rural w omen at risk of violence in Vietnam, and UNFPA hands over its dignity kits to COVID-19 hit HCMC and 4 provinces', UNFPA Vietnam, 15 December 2021

12. Domestic violence is against the law. Vietnam passed the Prevention and Combat against Domestic Violence Law on 14 November 2022 (the Law), which supersedes the 2007 version.[8] The Law defines domestic violence as ‘an intentional act of a family member causing or potentially causing physical, mental, sexual, or economic harm to other family members’.[9] The Law recognises 16 acts of domestic violence, including maltreating, threatening, insulting, nagging, or committing any intentional acts of harm, imposing psychological pressures, abandonment (children, pregnant women, elderly, disabled), discriminating, isolating, forcing acts of indecency, pregnancy, marriage, divorce and creating psychological and physical (including financial) dependency.[10] The law allows for domestic violence victims to receive support from an allocated shelter, obtain medical services, psychosocial support, legal aid, file a lawsuit, and receive compensation for any damage obtained.[11] The law also requires the perpetrators to be responsible for compensation.[12]

    [8] ‘Law on Domestic Violence Prevention and Control’, Vietnam Law & Legal Forum, 17 Mach 2023

    [9] ‘PREVENTION AND COMBAT OF DOMESTIC VIOLENCE’, Socialist Republic of Vietnam (Government), 14 November 2022. The extracts provided are draw n from Law Net Vietnam, a Vietnamese database of legal documents. An official English version of the law was not located. The Vietnamese version can be found here: ‘Luật số: 13/2022/QH15’, Socialist Republic of Vietnam, Law Net Vietnam, 14 November 2022. For full reliance on the contents of this document, a translation by an accredited translator should be obtained.

    [10] For a full list of domestic violence offences, please see: ‘Law on Domestic Violence Prevention and Control – Law Guide’, Vietnam Law & Legal Forum, 27 February 2023; 'What acts are considered domestic violence in Vietnam?', Law Net Vietnam, 1 July 2023

    [11] ‘Rights and responsibilities of domestic violence victims in Vietnam’, Law Net Vietnam, 27 July 2023; ‘PREVENTION AND COMBAT OF DOMESTIC VIOLENCE’, Socialist Republic of Vietnam (Government), 14 November 2022, Article 9. The extracts provided are draw n from Law Net Vietnam, a Vietnamese database of legal documents. An official English version of the law was not located. The Vietnamese version can be found here: ‘Luật số: 13/2022/QH15’, Socialist Republic of Vietnam, Law Net Vietnam, 14 November 2022. For full reliance on the contents of this document, a translation by an accredited translator should be obtained.

    [12] ‘Rights and responsibilities of domestic violence victims in Vietnam’, Law Net Vietnam, 27 July 2023; ‘PREVENTION AND COMBAT OF DOMESTIC VIOLENCE’, Socialist Republic of Vietnam (Government), 14 November 2022, Article 10. The extracts provided are draw n from Law Net Vietnam, a Vietnamese database of legal documents. An official English version of the law was not located. The Vietnamese version can be found here: ‘Luật số: 13/2022/QH15’, Socialist Republic of Vietnam, Law Net Vietnam, 14 November 2022, 20231211122207. For full reliance on the contents of this document, a translation by an accredited translator should be obtained.

1. Police response to domestic violence reports is varied and inadequate, though new protocols have been put in place to help enforce the law on domestic violence. In practice, the police and legal system are unequipped to deal with cases of domestic violence with responses both inadequate and varied.[13] Responses can differ greatly with some cases being pursued with perpetrators arrested, and others the police may either ignore the complainant or attempt to convince the victim to solve the problem themselves.[14] Cases of domestic violence are often pursued as a civil case, as opposed to criminally and can lack privacy and protection for the victim.[15] COISS could not locate any figures regarding police investigations since the November 2022 Law on combatting domestic violence came into play,[16] however the laws are much clearer in outlining the responsibilities of the state officials and the rights of the victims.[17] UN Women and the Ministry of Public Security (MPS) Vietnam have developed two set of guidelines, the Gender-Sensitive Investigation Guidelines for Handling Cases of Violence and Human Trafficking; and Standard Operating Procedures (SOP) for Providing Coordinated Essential Services to Victims of Violence and Human Trafficking.[18] The two guidelines set out the protocols and procedures for police at the grassroots level to have a gender-sensitive approach to assisting women facing violence, as well as tools to investigate cases.[19]

   [13] 'Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 29, 20230322091151; DFAT Country Information Report: Vietnam - 11 January 2022, Department of Foreign Affairs and Trade, 11 January 2022, paras.3.76, 3.79, p. 22

   [14] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.79, p.22

   [15] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.76, p.22; 'Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 28; ‘New Guidelines Empower Vietnamese Police to Safeguard Women Against Violence and Human Trafficking’, Un Women Asia and the Pacific 31 August 2023

   [16] Sources consulted include CISNET, government and NGO reports, domestic and international media, and internet searches.

   [17]  ‘Inside Vietnam’s Fight against the Silent Epidemic: Domestic Violence’, Heinrich Boll Stiftung (SouthEast Asia), 25 November 2022, 20231211150400; ‘Vietnam legislature adopts law to punish domestic abusers with community service’, Tuoi Tre News, 15 November 2022

   [18] ‘New Guidelines Empower Vietnamese Police to Safeguard Women Against Violence and Human Trafficking’, Un Women Asia and the Pacific 31 August 2023

   [19] ‘New Guidelines Empower Vietnamese Police to Safeguard Women Against Violence and Human Trafficking’, Un Women Asia and the Pacific 31 August 2023

2. Support services for women who have experienced domestic violence are available, though at limited capacity. Vietnams Ministry of Labour, Invalids and Social Affairs (MOLISA), with the assistance of United Nations Population Fund (UNFPA) Vietnam and the Government of Japan, maintain the Anh Duong House (‘Sunshine House’) centre which provide essential services for domestic violence survivors in the form of a ‘One Stop Service Centre’ (OSSC).[20] There are only four Sunshine Houses with two of those launched in June 2022.[21] NGOs supplement the government’s shortage to provide support and shelter to domestic violence survivors, however availability still remains a problem.[22]

   The Vietnam Women’s Union provides the Peace House Shelter[23], and the Centre for Studies and Applied Sciences in Gender- Family – Women and Adolescent (CSAGA)[24], HopeBox[25], and The Vietnamese Family Support Program (Vietnam)[26] provide local support services. Women living rural or outside of major cities often have difficulties in accessing assistance.[27] 24-7 hotlines are available to support women regardless of location and can offer counselling, crisis intervention and rescue support.[28]

   [20] 'Two additional UNFPA-supported One Stop Service Centres are set up to support survivors of gender-based violence', UNFPA Vietnam, 21 June 2022; 'Workshop discusses solutions to minimise gender-based violence', Vietnam Plus, 26 May 2023

   [21] 'Two additional UNFPA-supported One Stop Service Centres are set up to support survivors of gender-based violence', UNFPA Vietnam, 21 June 2022; 'Workshop discusses solutions to minimise gender[21]based violence', Vietnam Plus, 26 May 2023

   [22] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.77, p.22

   [23] ‘Peace House Shelters’, Centre for Women and Development, , n.d (accessed 13 December 2023)

   [24] ‘CSAGA, Vietnam’, Asian Network of Women’s Shelters, n.d (accessed 13 December 2023)

   [25] ‘Domestic violence in Vietnam- HopeBox’, HopeBox, n.d (accessed 13 December 2023)

   [26] ‘Vietnamese Family Support Program’, Inspire Youth and Family Services (IYS), n.d (accessed 13 December 2023)

   [27] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.77, p.22

   [28] ‘Launch of the “Anh Duong” House Shelter for reporting and supporting victims of violence against women and girls in Quang Ninh province’, UNFPA Vietnam, 29 April 2020 ‘CSAGA, Vietnam’, Asian Netw ork of Women’s Shelters, n.d (accessed 13 December 2023); ‘Peace House Shelters’, Centre for Women and Development, , n.d (accessed 13 December 2023)

3. Many Vietnamese women who experience domestic violence do not report it and will not have official documentation of incidents of violence. Sources indicate that many Vietnamese women do not come forward to seek help for domestic violence, for a variety of reasons, including social stigma,[29] cultural factors, including being labelled as a ‘bad wife’,[30] victim blaming culture,[31] privacy or protection concerns.[32] DFAT reports that owing to ‘societal and cultural attitudes, and the lack of availability of state protection,’ unless the situation is life threatening, many women do not seek assistance.[33] A 2019 survey found that approximately 50 percent of women did not disclose to anyone about the violence they were experiencing and 87 per cent of victim women did not seek help from public services.[34] Victims were often reluctant to seek help due to the inconsistent quality of reactions and assistance offered.[35] Underreporting of domestic violence occurs, with local authorities ignoring evidence and reporting the contrary.[36] The additional decrees contained within the revised Law on Domestic Violence Prevention and Control, ensure protection for victims in the prevention, combat, and reporting of cases.[37] The Law also contains responsibilities for family members in domestic violence prevention, including a responsibility to request perpetrators to end the behaviour, comply and cooperate with agencies and individuals in combating and preventing domestic violence.[38]

   [29] 'Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 29; ‘New Guidelines Empow er Vietnamese Police to Safeguard Women Against Violence and Human Trafficking’, Un Women Asia and the Pacific 31 August 2023

   [30] 'DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.76, p.22; ‘New Guidelines Empow er Vietnamese Police to Safeguard Women Against Violence and Human Trafficking’, Un Women Asia and the Pacific 31 August 2023

   [31] 'Taking Vietnam’s gender-equality challenge beyond policy reform', Ashlin Duffy, Australian Strategic Policy Institute, 01 September 2023

   [32]  ‘New Guidelines Empow er Vietnamese Police to Safeguard Women Against Violence and Human Trafficking’, Un Women Asia and the Pacific 31 August 2023

   [33] ‘DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.76, p.22

   [34] 'Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 29; ‘Launch of the “Anh Duong” House Shelter for reporting and supporting victims of violence against w omen and girls in Quang Ninh province’, UNFPA Vietnam, 29 April 2020; ‘Intersectoral coordination mechanism needed for gender-based violence response’, Vietnam Plus, 3 November 2023

   [35] ‘Intersectoral coordination mechanism needed for gender-based violence response’, Vietnam Plus, 3 November 2023; ‘DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.79, p.22

   [36] ‘DFAT Country Information Report: Vietnam - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, para.3.79, p.22

   [37] 'Vietnam legislature adopts law to punish domestic abusers with community service', Tuoi Tre Online, 15 November 2022

   [38] ‘Rights and responsibilities of domestic violence victims in Vietnam’, Law Net Vietnam, 27 July 2023; ‘PREVENTION AND COMBAT OF DOMESTIC VIOLENCE’, Socialist Republic of Vietnam (Government), 14 November 2022, Article 11. The extracts provided are draw n from Law Net Vietnam, a Vietnamese database of legal documents. An official English version of the law was not located. The Vietnamese version can be found here: ‘Luật số: 13/2022/QH15’, Socialist Republic of Vietnam, Law Net Vietnam, 14 November 2022. For full reliance on the contents of this document, a translation by an accredited translator should be obtained.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.

5. In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.

6. Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.

7. The Tribunal accepts the applicant’s evidence that, at the time her protection visa application was made on her behalf by the Melbourne man, she did not have any understanding of protection visas, nor was she aware of the content of her protection visa application.

8. The Tribunal notes the applicant’s evidence that the written claim in the protection visa application relating to an objection to the Communist government in Vietnam is not her claim and she is not relying on that claim.

9. The Tribunal is satisfied the applicant is not relying on any claim relating to an objection to the Communist government in Vietnam, and on that basis, the claim does not require the Tribunal’s consideration.

10. The Tribunal considers that the applicant experienced episodes of physical, sexual, emotional, and economic abuse perpetrated by her former husband over the period they lived together in Vietnam from [Year] to sometime in early 2015 following the assault by the former husband on the tourist strip.

11. The Tribunal notes the applicant’s evidence that she relies on the evidence she has given in the hearing about her relationship with her former husband, and not the written claim in the protection visa application that “after divorce, my former husband often threaten to kill me”.

12. The Tribunal notes the applicant’s evidence that the last contact she had with her former husband was a couple of months after arriving in Australia in 2015 when he called her and asked her to send money to help support the older child and she declined to do so.

13. The Tribunal notes the applicant’s evidence that the applicant’s former husband may call the children every couple of years, but he otherwise has no contact with them.

14. The Tribunal notes the applicant’s evidence that her former husband lives in Nha Trang, 120 kilometres from where her parents and children live, and that he has a girlfriend, but hasn’t remarried.

15. The Tribunal notes the applicant’s evidence that her daughter told her that her former husband was waiting for her, and that somehow she had learnt that on the night of the assault on the tourist strip her former husband had paced in front of the children holding a knife saying that if the applicant came home, he would kill her. The Tribunal considers this evidence vague, ambiguous, or unattributed and therefore no credible basis for making a finding about the former husband’s intentions to harm the applicant in the future.

16. The Tribunal notes there is no evidence before it of any abuse perpetrated against the applicant by her former husband since she stopped living with him sometime in early 2015.

17. The Tribunal accepts the documentary evidence of the divorce provided by the applicant. The Tribunal considers the fact that the divorce proceedings were finalised in Vietnam, in the applicant’s absence, and the applicant’s evidence that it would have been very difficult for her to get a divorce if she had remained in Vietnam are conclusive evidence only of the end of the marriage and the applicant’s intention to end the marriage.

18. The Tribunal notes the applicant’s evidence that she remained unlawful without a visa in Australia for three years before applying for a protection visa in June 2018 while knowing that, if she were apprehended by the Australian immigration authorities, she would be deported to Vietnam.

19. The Tribunal accepts that, on her arrival in Australia, the applicant was in an unfamiliar country with no English language skills. The Tribunal considers however that if the applicant genuinely feared her former husband, it is reasonable to expect that she would not have risked deportation to Vietnam for three years, and instead would have taken steps to ensure that she could remain in Australia legally so as to avoid deportation to Vietnam. The Tribunal further considers that the applicant’s reason for risking deportation, being that she needed to work to support her children in Vietnam, is persuasive evidence of her motivation for being in Australia.

20. The Tribunal considers it is likely that, if the applicant returns to Vietnam, she would live with her parents and children. The Tribunal further considers that the applicant, who has a university [degree], has demonstrated over a long period, both in Vietnam and Australia, her capacity for employment and is well-qualified and experienced to find employment in Vietnam.

21. The Tribunal considers there is no credible evidence before it to substantiate a finding that, if the applicant returns to Vietnam, she risks exposure to targeted serious harm or significant harm by her former husband in the foreseeable future such as to engage Australia’s protection obligations under the refugee or complementary protection criteria of the Act.

22. The Tribunal notes the applicant’s evidence that the financial burden was the main catalyst for the breakdown of the marriage, and that she decided to leave Vietnam and come to Australia to please her mother because she wasn’t earning enough money in Vietnam.

23. The Tribunal considers that the applicant’s primary motivation for coming to and wishing to remain in Australia is to work and earn sufficient money to enable her to provide financial support to her parents and children in Vietnam.

24. The Tribunal is satisfied the applicant’s evidence does not give rise to any further claims for protection requiring its consideration.

    Application of law

25. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.

26. The Tribunal finds that:

    38.1.The applicant is a citizen of Vietnam and non-citizen in Australia.

    38.2.The applicant’s claims do not satisfy the refugee or complementary protection criteria set out in the applicable law.

    38.3.If the applicant is returned to Vietnam, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.

    38.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk the applicant will suffer significant harm.

    CONCLUSIONS                   

27. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

28. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

29. There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.

    DECISION

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

    Kate Chapple
    Member

    
    
    

    ATTACHMENT A

    Summary of applicable law

    The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.

    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).

    Relevant extracts 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.