1900555 (Refugee)

[2024] AATA 2045

1900555 (Refugee) [2024] AATA 2045 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)

CASE NUMBER:  1900555

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Genevieve Hamilton

DATE:14 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 14 May 2024 at 2:55pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – harvest purchase policies – passport renewal – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 May 2018.  The delegate refused to grant the visa on 10 December 2018.

3. The applicant was invited to attend a hearing of the Tribunal in her matter.  However she declined and consented to a decision on the papers.  The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

8. 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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

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

    CLAIMS AND EVIDENCE

16. In her protection application the applicant said she was from Vinh, Nghe An Province, Vietnam, was born in [specified year] and is a Vietnamese citizen. She speaks, reads and writes Vietnamese. She claimed she was married in 1993 and widowed in 2010. She declared only two family members – her parents in Vietnam. She said she had no contact with her family. She left Vietnam legally. Her current passport is a Vietnamese one, issued in [2015]. She said she arrived in Australia in September 2013 as a visitor. She said she worked as a farmhand in Vinh from 2000.

17. The applicant claimed she left Vietnam in fear for her life.  She had voiced her opinion to her neighbours and friends that it was not easy to earn a living because the government wants to buy cheap harvest and would not allow people to sell their harvest privately.  People who sold privately were in serious trouble.  She was warned.  The authorities came around to her farm to monitor her harvest each season and watched her movements daily.  She fears harm from the Vietnamese government. They gave her a hard time and threatened to lock her up if she did not follow the rules.  She could not avoid the authorities by relocating and it was the police she feared so she could not get protection from the authorities. 

18. The applicant submitted a copy of the 2018 Human Rights Watch Report for Vietnam which includes information about the treatment of political dissidents. 

19. The applicant submitted a copy of the Delegate’s decision with her review application.  The Decision notes that the applicant became unlawful in December 2013 and lodged her protection application in May 2018. 

20. In her response to the hearing invitation the applicant confirmed her claims and said she still feared being harmed in Vietnam. 

    FINDINGS AND REASONS

21. Based on the information in her application the Tribunal finds that the applicant’s country of nationality is Vietnam.

22. The applicant in essence claimed she was at risk of harm from the Vietnamese authorities because of her political opinion, having vocally resisted regulated harvest purchase prices, as she is a farmer.

23. The applicant’s claims are sketched out in the briefest terms.  The Tribunal does not accept that the applicant is a farmer.  It has insufficient detail about the nature of the farm, or her connection with it whether as owner or employee or family operator. 

24. It follows that the Tribunal does not accept that the applicant was a critic of harvest purchase policies of the Vietnamese government, or that she expressed this view to anyone, or that the authorities had any adverse interest in her due to her resistance or opposition to the government’s policies, or that she was monitored or threatened.  This finding is reinforced by the fact that the applicant was able to leave Vietnam legally on a regularly issued passport and has since been issued with a new one. 

25. The Tribunal’s findings are also reinforced by the fact that the applicant did not apply for protection until she had been without a visa for more than years.  Such a delay is relevant to a consideration of the genuineness of her claimed fear.  If she feared harm on return to Vietnam the Tribunal would expect that she would make arrangements to seek protection much sooner.   

26. In summary, the Tribunal does not accept that the applicant faces a real chance of serious harm for reason of her political opinion or for any other of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

27. As the Tribunal has not accepted the factual basis of the applicant’s claims, the Tribunal is also not satisfied there are substantial grounds to believe that on her return to Vietnam there is real risk that the applicant will suffer significant harm as defined in s 36(2A). 

    CONCLUSION

28. 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) or s 36(2)(aa).

29. 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.

30. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member