1837048 (Refugee)

1837048 (Refugee) [2024] AATA 2948 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1837048
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mia Bailey
DATE:17 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2024 at 3:47pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – applicant was properly invited to a hearing – failed to attend hearing – applicant has provided insufficient details of any threats to him or his family from the Vietnamese authorities – lack of information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426, 499
Migration Regulations 1994, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 11 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 6 April 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant was initially invited to attend a hearing before the Tribunal on 21 March 2024 to give evidence and present arguments. On 20 March 2024, the applicant requested that the hearing be postponed as he was feeling unwell with cold and flu symptoms. The Tribunal agreed to a postponement. The applicant was invited to attend a hearing on 3 April 2024.
On 2 April 2024, the applicant requested a further postponement of the hearing, stating he was ‘sick and exhausted’. He submitted a medical certificate dated 2 April 2024 certifying that due to a medical condition, he is ‘unfit for duty’ between 2 and 5 April 2024. With the applicant’s consent, the Tribunal requested further details from the medical practitioner regarding the nature of the applicant’s medical condition and how this impacted his ability to attend a hearing. The medical practitioner advised that the applicant was suffering an upper respiratory tract infection.
The Tribunal agreed to a further hearing postponement. On 3 April 2024, the Tribunal invited the applicant to attend a hearing on 17 April 2024 at 12:30pm. The invitation stated that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear. The applicant did not respond to the hearing invitation sent on 3 April 2024.
The Tribunal sent SMS hearing reminders to the applicant on 10 April 2024 and 16 April 2024 via the mobile number provided in his review application. Delivery failure messages were received on both occasions. On 15 April 2024, the Tribunal sent an email to the applicant reminding him of the hearing on 17 April 2024 and requesting that he respond to the hearing invitation. No response was received.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal called the applicant’s mobile at the scheduled hearing time but was unable to connect due to it being an incomplete or incorrect number.
Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to a hearing in accordance with the relevant statutory requirements, the invitation was not returned to sender, and the applicant was informed of the potential consequences of non-appearance. No reason for the non-appearance on 17 April 2024 has been provided.
In these circumstances I have decided to exercise my discretion under s 426A(1A)(a) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
CRITERIA FOR A PROTECTION VISA
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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), 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
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act.
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. 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 any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[1]
For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
As outlined in the delegate’s decision, the applicant, a [age]-year-old male, first arrived in Australia on [date] July 2013 on a Higher Education Sector (TU-573) visa, which was cancelled on 23 February 2017. Between 12 July 2013 and 23 February 2017, he departed and returned to Australia on 2 occasions. His last arrival in Australia was on [date] July 2015.
The applicant provided a copy of the biodata page of his Vietnamese passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Vietnam and there is no information before me to the contrary. I find that the applicant is a citizen of Vietnam, and that Vietnam is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to the protection visa application, the applicant was born in Vinh Long. His father, mother and one sister reside in Vietnam. No details are provided of his educational or employment history.
Regarding his protection claims, he states that he left Vietnam to study abroad. If he returns, he thinks the Vietnamese authorities will threaten to kill him and his family. Regarding any harm experienced in Vietnam, he states ‘threats to my family’. Regarding future harm, he states that if he returns the Vietnamese authorities will not treat him like other citizens and will instead treat him as a criminal.
The applicant was not invited to attend an interview with the delegate. Based on the available evidence, the delegate found that the applicant would not face a real chance of persecution or a real risk of significant harm from the Vietnamese authorities if he were to return to Vietnam.
Assessment
As discussed above, the applicant did not appear before the Tribunal to give evidence and present arguments. I have made my decision based on the available information.
I have significant concerns with the applicant’s claims. The evidence provided by the applicant to the Department is not sufficiently detailed to enable me 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 being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
The applicant has provided insufficient details of any threats to him or his family from the Vietnamese authorities, including when this occurred, who threatened him or his family and why they threatened him or his family. He has provided insufficient details of why the authorities would view or treat him as a criminal or in any way differently to other Vietnamese citizens. He has not provided any details of what has occurred to him or his family since he lodged his protection visa application in April 2018.
Given the lack of information identified above, without more detail, I am unable to make an assessment of the significance to be attached to the applicant’s assertions. He has not provided any further information to enable me to determine if he has suffered persecution in the past; whether his fear of facing persecution in the future is for any of the reasons in

s 5J(1)(a) of the Act; or if his fear is well-founded.
In view of the insufficient information and lack of detail contained in the applicant's claims, I am not satisfied that the applicant has been persecuted in the past, or that there is a real chance that he will be persecuted in the reasonably foreseeable future if he were to return to Vietnam. I am not satisfied that the applicant has a well-founded fear of persecution in Vietnam and therefore find that the applicant is not a refugee as defined in s 5H(1).
Having concluded that the applicant is not a refugee, I have considered the alternative criterion in s 36(2)(aa). For the same reasons discussed above, I am not satisfied 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.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
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.
…

[2024] AATA 2948

17 April 2024

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