1907208 (Refugee) - [2023] AATA 1318

1907208 (Refugee) [2023] AATA 1318 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Tanya McIntyre (MARN: 1571093)
CASE NUMBER:  1907208 and 2200455
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:31 March 2023
PLACE OF DECISION:  Brisbane

DECISION: The Tribunal remits the following matters for reconsideration:

a.Matter 1907208 (Temporary Protection visa application) made on 25 August 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and
b.Matter 2200455 (Safe Haven Enterprise visa application) made on 28 September 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 March 2023 at 10:30am

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 438
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
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 on 21 May 2018 and 21 December 2021 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 25 August 2016 and 28 September 2020.
According to Departmental records, the applicant arrived in Australia by sea at Darwin on
[date] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Temporary Protection visa visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The delegate refused the visa(s) as they did not find the applicant to be a credible witness.
The applicant was represented in relation to the review. The representative provided a legal submission and documents to the Tribunal.
The applicant appeared as a witness at his wife’s hearing, and he gave evidence. The applicant’s claims are the same claims as his wife’s claims. Due to the fact that the applicant had given evidence at his wife’s hearing and based on the wife’s evidence and documentation, the Tribunal considered that the applicant did not need to appear again at his own hearing and has gone onto make a decision on the papers.
The applicant has provided the Department with documentation to prove his identity. The Department has assessed that the applicant is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 1318
Decision Date: 31 March 2023

CaseChat Overview and Summary

The applicant, a national of Vietnam, sought a protection visa, claiming a well-founded fear of persecution due to his opposition to the forcible resumption of his family's land by Vietnamese authorities. The dispute centred on the applicant's assertion that he faced harm from Vietnamese authorities, including threats of imprisonment and intimidation by gangsters, as a consequence of his family's complaint about the inadequate compensation offered for their land. The applicant also cited his illegal departure from Vietnam as a further reason for fearing detention. The decision under review was made by Nora Lamont, a member of the Tribunal.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of section 36(2)(a) of the Migration Act 1958 (Cth) or, alternatively, whether Australia had protection obligations under section 36(2)(aa) due to a real risk of significant harm upon removal to Vietnam. This involved assessing the applicant's claims of persecution for reasons of political opinion or membership of a particular social group, and considering the evidence presented regarding the actions of Vietnamese authorities and the potential consequences of his return.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 84 and relevant guidelines and country information. It found that the applicant was a person in respect of whom Australia had protection obligations and satisfied the criterion set out in section 36(2)(a) of the Migration Act. The Tribunal's reasoning appears to have accepted that the applicant's opposition to the land resumption and the subsequent actions of the authorities constituted a well-founded fear of persecution.

Consequently, the Tribunal remitted the applicant's Temporary Protection visa application and Safe Haven Enterprise visa application for reconsideration, with a direction that the applicant satisfies section 36(2)(a) of the Migration Act for both matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.CONSIDERATION OF Claims and evidence The applicant’s migration history is as follows: ·[Date] March 2013 departed Vietnam. ·[Date] April 2013 rescued at sea by Australian customs. ·[Date] April 2013 arrived in Australia at Darwin, non-excised place under the Act. ·20 August 2013 screened in, barred from making application. ·15 October 2014 released from immigration detention. ·March 2016 re-detained in immigration detention. ·25 August 2016 TPV application dated on visa refusal decision 9 May 2017 (on or about) – protection interview. ·15 May 2017 BVE 050 granted in relation to protection application. ·30 January 2018 protection interview. ·21 May 2018 TPV visa refusal 24 July 2018 – IAA decision affirms visa refusal decision.·6 August 2018 decision of Perram, Wigney and Lee JJ in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, appeal from DBB16 v Minister for Immigration [2017] FCCA 375. ·27 August 2020 notice of invalid application following DBB16.·10 September 2020 invitation to apply for TPV or SHEV. ·28 September 2020 SHEV application. ·22 September 2021 protection visa interview by video conference ·21 December 2021 SHEV refusal decision. The applicant was born in [a] Village in Nghe An in Vietnam on [date]. His parents were [occupations] and he completed secondary school after which he worked on his family plot of land. The applicant got married in 2004 and lived in his mother-in-law’s home. He went to work in [other countries], and he returned in 2011 when he worked with his wife in their [business]. The applicant’s claims as summarised in the delegates decision are as follows: [1][1] [File number]·The applicant is now a Christian. ·The government issued resumption orders offering very low amount of compensation for land in his local area. ·The government wanted his family to move off their land to build houses for officials. ·The resumption order is still valid although it has not been enforced. ·None of the landowners are permitted to build anything else on their land due to the resumption order. ·A local government official was given special permission to build on his block. ·The way his family and the other locals were dealt with was unfair. ·His family made an official complaint in October or November 2012 signed by many local people. ·Over the next five or six weeks, the local police visited his family and told them to withdraw the complaint. ·The police sent letters to his family regarding the land resumption before. ·The police threatened his family with jail term. ·Gangsters were also hanging around his family home. ·He was not allowed in the local area because of the land issue and the complaint. ·He moved to [Town 1] in [a] district and started a [business]. ·Government officials from his home area sent a letter to officials in [Town 1] stating that he was to be stopped operating his business. ·He and his wife decided to leave Vietnam because they could not earn a living. ·His mother-in-law and his daughter are still residing in the family house. ·His daughter has to attend a private school due to the complaint he made regarding the land resumption. ·His main reason for seeking protection from Australia is his fear of harm at the hands of the Vietnamese authorities on account of his opposition to their forcible resumption of his family land. ·He fears that he will be put into jail because of the land dispute and also because he left Vietnam illegally. Evidence gathered from wife’s hearing and applicant’s evidence provided orally and written

Decision

Reasons for decision

For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).DECISIONThe Tribunal remits the following matters for reconsideration:a.Matter 1907208 (Temporary Protection visa application) made on 25 August 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; andb.Matter 2200455 (Safe Haven Enterprise visa application) made on 28 September 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Nora LamontMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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.CONSIDERATION OF Claims and evidence The applicant’s migration history is as follows: ·[Date] March 2013 departed Vietnam. ·[Date] April 2013 rescued at sea by Australian customs. ·[Date] April 2013 arrived in Australia at Darwin, non-excised place under the Act. ·20 August 2013 screened in, barred from making application. ·15 October 2014 released from immigration detention. ·March 2016 re-detained in immigration detention. ·25 August 2016 TPV application dated on visa refusal decision 9 May 2017 (on or about) – protection interview. ·15 May 2017 BVE 050 granted in relation to protection application. ·30 January 2018 protection interview. ·21 May 2018 TPV visa refusal 24 July 2018 – IAA decision affirms visa refusal decision.·6 August 2018 decision of Perram, Wigney and Lee JJ in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, appeal from DBB16 v Minister for Immigration [2017] FCCA 375. ·27 August 2020 notice of invalid application following DBB16.·10 September 2020 invitation to apply for TPV or SHEV. ·28 September 2020 SHEV application. ·22 September 2021 protection visa interview by video conference ·21 December 2021 SHEV refusal decision. The applicant was born in [a] Village in Nghe An in Vietnam on [date]. His parents were [occupations] and he completed secondary school after which he worked on his family plot of land. The applicant got married in 2004 and lived in his mother-in-law’s home. He went to work in [other countries], and he returned in 2011 when he worked with his wife in their [business]. The applicant’s claims as summarised in the delegates decision are as follows: [1][1] [File number]·The applicant is now a Christian. ·The government issued resumption orders offering very low amount of compensation for land in his local area. ·The government wanted his family to move off their land to build houses for officials. ·The resumption order is still valid although it has not been enforced. ·None of the landowners are permitted to build anything else on their land due to the resumption order. ·A local government official was given special permission to build on his block. ·The way his family and the other locals were dealt with was unfair. ·His family made an official complaint in October or November 2012 signed by many local people. ·Over the next five or six weeks, the local police visited his family and told them to withdraw the complaint. ·The police sent letters to his family regarding the land resumption before. ·The police threatened his family with jail term. ·Gangsters were also hanging around his family home. ·He was not allowed in the local area because of the land issue and the complaint. ·He moved to [Town 1] in [a] district and started a [business]. ·Government officials from his home area sent a letter to officials in [Town 1] stating that he was to be stopped operating his business. ·He and his wife decided to leave Vietnam because they could not earn a living. ·His mother-in-law and his daughter are still residing in the family house. ·His daughter has to attend a private school due to the complaint he made regarding the land resumption. ·His main reason for seeking protection from Australia is his fear of harm at the hands of the Vietnamese authorities on account of his opposition to their forcible resumption of his family land. ·He fears that he will be put into jail because of the land dispute and also because he left Vietnam illegally. Evidence gathered from wife’s hearing and applicant’s evidence provided orally and written