1831477 (Refugee)

[2024] AATA 3163

1831477 (Refugee) [2024] AATA 3163 (8 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831477

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Patrick Francis

DATE:8 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 May 2024 at 12:05pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – hearing invitation declined – decision on the papers – religion – Catholic – political opinion – anti-communist – compulsory military service – insufficient information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 6 April 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer persecution for reasons relating to his claim that he is a Catholic or for his political opinion. In respect of the applicant’s claim that he would be required to complete military service in Vietnam, as he has not done so earlier or that he would be punished for not having completed such service, the delegate was not satisfied that there was a real chance that the applicant would face serious harm or significant harm for those reasons in Vietnam. The delegate further reasoned that, even if the applicant was called for military service, such requirement applies to Vietnamese males generally and not to the applicant specifically.

3. By letter, dated 5 April 2024, the Tribunal wrote to the applicant inviting him to give evidence and present arguments relating to the issues arising in his case at a hearing scheduled for 14 May 2024.

4. On 8 April 2024 the applicant lodged with the Tribunal a ‘Response to hearing invitation’ form in which he indicated he would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. In that document he indicated he would provide further evidence to the Tribunal seven days prior to the hearing.

5. By letter, dated 15 April 2024, the Tribunal wrote to the applicant confirming receipt of the completed hearing response and advising that the hearing scheduled for 14 May 2024 had been cancelled on the basis of the applicant’s earlier response. In part that letter set out that he should lodge any submissions or further evidence no later than 5 PM on 23 May 2024.

6. By further letter, dated 22 April 2024, the Tribunal wrote to the applicant advising that details in the earlier correspondence were incorrect and at the date for lodging further submissions stated in the earlier letter was meant to be 23 April 2024 and not 23 May 2024. The Tribunal apologised for that error and advised that the Member would defer making a decision until after 5 PM on 3 May 2024 and that the applicant could lodge any further material in support of his application until that time. The letter from Tribunal officer indicated that the applicant was welcome to contact him if the applicant had any queries or concerns regarding that timeframe.

7. No further response or evidence was lodged by the applicant with the Tribunal.

8. In the context of the above, the Tribunal is satisfied that the applicant consents to the Tribunal determining the review without the applicant appearing before it and has proceeded to determine the matter on the papers pursuant to s.425(2)(b).

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    CLAIMS AND EVIDENCE

15. In his protection visa application the applicant claimed that he feared persecution in Vietnam because of his religious beliefs, because he is anti-communist and because he avoided national service. He claimed that he would be forced to undertake national service in Vietnam should he return, in addition to being punished because he had previously avoided undertaking such national service. He claimed that he had been unlawful in Australia for many years as he was unaware of the law and didn’t know anything about applying for protection. The applicant stated that his parents were Catholics and that after 1975 the practice of western religions, including Catholicism, was not tolerated and that the state would punish those practising any form of Christianity. He claimed to have been raised as a Catholic and that he had developed “very anti-Communist” views but there was nothing he could do as those who spoke out against the government would suffer persecution.

16. The applicant stated that he would attend church every Sunday. He claimed that the churches were often targeted by anti-Christians who would break windows, cause damage to the buildings and on some occasions vandalise the inside of the church. This caused him to fear for his safety. He further asserted that the police or state authorities did not do anything to catch the criminals who had damaged the churches. The applicant claimed to have been harassed for wearing a chain with a cross around his neck by those who are Buddhist or anti-Christian. Also, that his practice of religion was not supported by the people and government of Vietnam such that he had to practice in private.

17. The applicant also referred to a letter from the government after completing his studies stating that he had to undertake two years of national service. He claims that he was able to bypass such service because he wished to continue his studies in Australia. His parents received a letter in 2012 stating that the applicant was now eligible for military training.

18. The applicant provided to the Department four articles concerning religion and human rights in Vietnam.

    CONSIDERATION

19. The issue in this case is whether there is a real chance that the applicant will be persecuted on return to Vietnam and, if not, whether there is a real risk he would suffer significant harm if removed from Australia to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

20. A copy of the applicant’s Vietnamese passport is contained on the Departmental file. The applicant claims to be a citizen of that country and has been assessed on that basis by the Department. The Tribunal finds that the applicant is a citizen of Vietnam and has assessed his claims accordingly against that country as his country of nationality and the receiving country.

21. The claim of a fear of persecution for a particular reason by itself does not establish that the asserted fear is genuine, well-founded or that it is for the reason claimed. Similarly, the fact an applicant claims to face a real risk of serious harm does not establish by itself that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case rather, it is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

22. The applicant has provided insufficient information regarding his claims for protection. There is insufficient detail in the applicant’s written evidence concerning his adherence to Catholicism, his claimed harassment for wearing a cross and how damage to churches related to his own fears for safety, whether such fears amount to a real chance or a real risk of serious or significant harm, the exact nature of the harm he fears in Vietnam on account of his religious beliefs and insufficient detail concerning restrictions on his religious practice or expression of it. The submission of general articles to the Department does not, in the Tribunal’s view, add weight to the applicant’s assertions without sufficient information concerning the above matters.

23. Further, the assertion by the applicant as to his anti-communist views is made without basic detail. He claims that the Communist government in Vietnam is very repressive and that there is no freedom to express opinions and that those speaking out against the government would suffer persecution. However, the applicant has provided no detail as to his own political views or how those views conflict with the Vietnamese Government. Nor has he provided detail as to how he was able to travel to and from Vietnam without apparent restriction given his claims as to fearing harm on account of his religious and political beliefs. There is, in the Tribunal’s view, also insufficient detail as to whether there is a real chance or a real risk that he would experience serious or significant harm on return to Vietnam.

24. In respect of the claimed fear of harm in Vietnam on account of not having completed military service, again insufficient detail has been provided. The applicant asserts that he would be punished for avoiding national service but has given no detail as to why he holds such belief, what “punishment” he refers to and detail as to how any such punishment would constitute a real chance or a real risk of serious or significant harm. Similarly, despite the claim that he would be forced to complete two years military training on return to Vietnam, insufficient detail is before the Tribunal as to how such service (should it actually be required) would impact the applicant so as to constitute a real chance or real risk or serious or significant harm.

25. The evidence before the Tribunal is insufficiently detailed to enable the Tribunal to be satisfied that he faces a real chance of persecution in Vietnam or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.

26. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

27. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

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

    DECISION

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

    Patrick Francis
    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.

    …