1904114 (Refugee)

1904114 (Refugee) [2024] AATA 2127 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1904114

COUNTRY OF REFERENCE: Vietnam
MEMBER:Rodger Shanahan
DATE:23 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2024 at 3:52pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to corruption – surveillance by authorities – fear of detention – extortion – employment in Australia – period of unlawful residence – cancellation of household registration – 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
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 31 July 2018.
The applicant appeared before the Tribunal on 22 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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.
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, which are extracted in the attachment to this decision.
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
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
Protection visa application
The applicant provided the following responses in his protection visa application:
a.Why did you leave Vietnam ? Since leaving school, working hard as handyman/general jobs available, I’d been facing real issues in life that everything involved money, many corruption authorities in every levels, demanding money to get things through. I’d opposed them (authorities) even conflicted to them, life became harder as tough and tougher daily often supported the group who opposed the communist government had been watched and follow my activities daily. Then I’d open mind thinking of travel abroad for a better living opportunities. Strongly opposed/condemned the communist regime Vietnam on ‘net’. It’s now too scary of getting back home – Vietnam;
b.What do you think will happen to you if you return to Vietnam ? With the above issues (Clause 76) surely would be a bad/dangerous to their regime. Surely mistreated/ignored, will be caught for investigations or arrested, distortion for money;
c.Did you experience harm in Vietnam ? Many occasions local authorities have stopped my works, demanding money as I’d opposed them. Been mistreated, but things harder for daily works make daily family normal livings even harder, becoming too stressful;
d.Did you seek help within Vietnam ? Any parts of communist Vietnamese country would be same situations, no better results. No financial supports wherever we go;
e.Did you move, or try to move to another part of Vietnam ? As above Clause 79 mentioned, no better results but family would even suffer hardest hit;
f.Do you think you will be harmed or mistreated if you return to Vietnam ? As fully mentioned above Clause 76/77, surely mistreatment/distortion for money/and would not get any better, but the opposite;
g.Do you think the Vietnamese authorities can/will protect you ? The communist government would never offer any protection, but will distortion, worst results.
AAT Hearing
He said that he received a letter from the Department but he didn’t read English and didn’t know what to do and he asked a friend what to do. He was asked if he had a daughter who spoke English, he agreed that he did. Asked why he didn’t get her to explain it to her, he said she was married and lived far away. Asked where she lived, he said she lived in Sydney but didn’t know where. He didn’t keep much contact with her. I note that his daughter attended the Tribunal as his support person.
He was asked about the two pieces of information he had been asked to provide prior to the hearing but to which no reply had been received. He said that he didn’t know about this information as his friend just told him to attend the hearing. It was put to him that the letter was sent to the applicant at his nominated address so it was his responsibility to answer it. He said that his English wasn’t very good. It was put to him that it was his responsibility to have the letter translated and respond and was asked why he didn’t do this. He repeated his claim that his friend never told him that he needed to reply to the letter. He was again told that it was his responsibility to find out what the letter required and to provided the appropriate response.
Asked what he feared if he returned to Vietnam, he said that he ran a [shop] in Vietnam and he was depressed unfairly but things were good when he came to Australia and he didn’t want to return to Vietnam. Asked who would harm him if he returned to Vietnam, he said that nobody would harm him. He confirmed that nobody or no organisation would harm him in Vietnam.
Asked why he was applying for protection in Australia, he claimed that he came to Australia and his friends told him that if he wanted to stay he could get a visa and work and pay tax. He wanted to stay here and get some work. Asked if he just wanted to stay in Australia, he said he wanted to work. Asked if he understood what visa he had applied for, he said he didn’t. He just listened to his friends and followed their instructions. A lawyer in Melbourne filled out his form for him - he communicated with him by phone.
Asked if the applicant told the lawyer to write on the application, he said that he did. Asked what he told the lawyer, he said that he only knew what type of visa he was applying for, but didn’t know what was in it. He was asked what type of visa he applied for, and he said he believed it was a bridging visa. He again confirmed that he didn’t know what was in his protection visa application and that he didn’t fear any harm on return to Vietnam and that he just wanted to work.
He confirmed that he didn’t know what was in his visa application. He had never criticised the Vietnamese government on the internet. He had previously left Vietnam and returned to Vietnam without problems every year between 2008 and 2014. This would indicate that he had no problems leaving or returning to Vietnam and he agreed.
He stated he had been refused a visa once but didn’t know why because an agent did it for him. Asked why he thought it may have been rejected, he said he didn’t know. When he got his Australian visa he didn’t return after its three months’ validity because his friends told him about this visa for work. Asked when he applied for his protection visa, he said it was three years later. Asked what he did on 16 February 2015 when his Australian visa expired and he was illegally in Australia, he said that found work through friends. Asked what he did about regularising his immigration status when his visa expired, he said he just stayed illegally.
It was put to him that the Tribunal believed he just came to Australia to work and his protection visa application was false as he didn’t know what was in it. He agreed. Asked to confirm that nobody would hurt him on return to Vietnam, he said that he didn’t know. It was put to him that he must know if someone was going to harm him, and he said that since he left he thought that his name may have been cancelled on his household registration.
Asked when his passport was issued, he said he got a new passport in 2018 through the Vietnamese consulate. Asked if they had to check his registration, he said that a person from the local government had rung him and said that if he didn’t return back to Vietnam they would have to cancel his household registration. He was asked why he had never mentioned this before given he had been asked by the Tribunal if there was a problem returning and he never mentioned this. He said he was called last year. It was again put to him that he had not mentioned this and perhaps had just introduced this at the end of the hearing because he thought he better come up with something – the Tribunal was concerned he had fabricated this claim. He said he was telling the truth.
He was asked to provide the name of the lawyer who had falsified the claim form, as well as country information that indicated his name would be taken off the family registry. He claimed his wife had been taken off the registry but his children hadn’t. He had no evidence of this and neither had he engaged with the Vietnamese government about checking his status on his family registration. He was advised that his claim that he received a phone call out of the blue last year was unlikely to be given any weight, particularly since he had not engaged with the Vietnamese government to check on its veracity if it was of concern to him. He was advised that he could provide any additional evidence to the Tribunal by the end of business if he wished. No additional information was provided.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] November 2014 and his visitor visa ceased on 16 February 2015. He remained in Australia unlawfully until he applied for protection on 31 July 2018. I have sighted his Vietnamese visa and accept that he is a national of that country.
The applicant is [an age] year-old man who claimed that if he returned to Vietnam he would investigated and arrested because he had opposed the Vietnamese government over the internet.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility and he admitted that his written claims were untruthful. For reasons set out below I did not find the applicant to be a credible, reliable or truthful witness, and find that he fabricated claims, or allowed them to be fabricated in order to be granted a protection visa.
Written Claims
The applicant claimed that he was unaware of what was in his written claims because they had been written by a lawyer in Melbourne whom he had spoken to over the phone. The form indicated that nobody had assisted in the filling out of the form. I am satisfied that someone had assisted him with filling out the form, although given the poor English skills displayed I am not satisfied that it was a Melbourne-based lawyer.
Regardless of who filled out the form, the applicant has said that he was unaware of what was contained in the applicant, and that nobody would harm him if he returned to Vietnam. He had come to Australia and just wanted to stay and work.
Given the applicant’s admission that he did not fill out his application, was unaware of what was in it and had just come to Australia to stay and work, it follows that he never opposed the Vietnamese authorities, that he was never watched and followed for doing so, was nor would ever be investigated or arrested, never had his work stopped, had money demanded from him or would suffer any mistreatment on return to Vietnam.
The lack of any adverse action against him or fear of serious harm if he returned is supported by the fact the fact that he waited more than three and a half years after his visa expired in Australia before applying for protection. He had friends in Australia who could have helped him apply for protection, yet he used them to find employment.
Verbal Claim
Let in the hearing the applicant claimed that he didn’t know if someone would hurt him on return to Vietnam as he had been rung by someone from the local government in Vietnam and told that if he didn’t return to Vietnam his household registration would be cancelled.
There are a number of reasons why the Tribunal does not accept this claim to be true. To begin with he only mentioned it late in the hearing, after earlier saying that nobody would harm him if he returned to Vietnam. It is also strange that the Vietnamese local government authorities would have the applicant’s Australian mobile number after he had left Vietnam nearly a decade previously. He had no evidence that his name had been taken off, nor had he attempted to confirm the situation even though it was open to do so through Vietnamese diplomatic posts in Australia. He provided no evidence to support the claim that his name would have been, or was taken of the family registration in Vietnam even though he given time post-hearing to do this.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever critical of the Vietnamese government, that he was ever watched and followed for doing so, was nor would ever be investigated or arrested, never had his work stopped, had money demanded from him, has or would have his name removed from his family registration or would suffer any mistreatment on return to Vietnam, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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).
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.
Rodger Shanahan
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 2127

23 May 2024

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