1907483 (Refugee) - [2024] AATA 4225

1907483 (Refugee) [2024] AATA 4225 (17 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907483
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Alexander Reilly
DATE:17 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2024 at 12:08pm

CATCHWORDS
REFUGEE – Protection Visa – Vietnam – applicant was properly invited to a hearing – failed to attend hearing – threatened by the Vietnamese police – no supporting documents or evidence – protests about China’s invasion of the Spratly Islands – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 425, 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 on 5 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Vietnam, applied for the visa on 31 May 2018. The delegate refused to grant the visa. The applicant sought a review of the delegate’s decision.
The Tribunal made contact with the applicant by email on 18 April 2024 with a blank pre-hearing information form requesting that the applicant provide a phone contact number. The Tribunal did not receive a reply to this email.
The Tribunal made further contact with the applicant by email on 2 May 2024 inviting him under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 6 June 2024 at 9.30am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
At 11.50am on 5 June 2024, the day before the hearing, the applicant responded to the hearing invitation by email requesting an adjournment for the following reason:
I am not ready for the final hearing tomorrow. I need a lawyer to attend the hearing with me but I have difficulty finding one because I do not have enough money. Please postpone the hearing for 4 weeks so that I can continue to find a legal aid lawyer.
The Tribunal sent an email to the applicant at 1.54pm on 5 June 2024 declining the request for an adjournment. The Tribunal indicated that the hearing would provide the applicant with an opportunity to explain his situation and, if appropriate, to make the request for an adjournment in person. The Tribunal also repeated the earlier request for the…

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.

Continue reading 1907483 (Refugee)

Details

AGLC: 1907483 (Refugee) [2024] AATA 4225
Case: [2024] AATA 4225
Decision Date: 17 July 2024

CaseChat Overview and Summary

This matter concerned an application for a Protection visa by a citizen of Vietnam. The applicant claimed to have been threatened by Vietnamese police for expressing concerns about China's invasion of the Spratly and Paracel Islands and the Vietnamese authorities' inaction. The applicant alleged he would suffer harm and mistreatment from Vietnamese authorities due to their desire not to upset Chinese Communists. The Administrative Appeals Tribunal (the Tribunal) reviewed the delegate's decision to refuse the visa.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason, or alternatively, whether Australia had protection obligations under the complementary protection criterion. This involved assessing the applicant's claims in light of the country information available regarding the risks faced by individuals expressing political opinions in Vietnam, and considering any credibility concerns. The Tribunal also had regard to Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines.

The Tribunal found that the applicant had failed to provide any supporting documents or evidence to substantiate his claims. Furthermore, the applicant had not provided further information to support his claims since the delegate's initial refusal. The Tribunal noted that while certain political activities and expressions of opinion are sensitive in Vietnam, the country information suggested that a low-profile activist would at best face detention for a short period and subsequent release. The Tribunal concluded that the applicant had not established a well-founded fear of persecution, nor had he demonstrated a real risk of significant harm as required for complementary protection.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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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 EVIDENCEApplicant’s claims In his application for a Protection visa, the applicant states that he was born on [date]. He has a partner born in [year], and two sons born in [year] and [year]. He has a mother, father, sister and brother living in Vietnam, and an aunt who is an Australian citizen. The applicant travelled to Australia on a Sponsored Family visa on [date] November 2017 and applied for a Protection visa on 31 May 2018. The delegate refused the application on 5 March 2019. In his application for a Protection visa, the applicant made the following claims:I was threatened by the Vietnamese police for expressing my concerns about China's invasion of Spratly and Paracel islands and the facts that the Vietnamese authorities did not take necessary actions to stop such invasion.I would suffer harm and mistreatment from the Vietnamese authorities. Further details will be provided.As the Vietnamese Communists would not want to upset the Chinese Communists, they would carry out tough measures to oppress Vietnamese people who dare to stand up against China's invasion. No supporting documents or evidence were provided with the application. The applicant answered ‘no’ to questions in the visa application asking whether he had ever applied for refugee status or protection in another country, whether he had been charged with any offence awaiting legal action, whether he had been the subject of an arrest warrant, whether he was aware of being the subject of a criminal investigation or whether he had criminal charges pending against him. Delegate’s decision The Delegate refused the application on the basis that the applicant was a political activist with a low profile and would at best be detained for one day and then released if he returns to Vietnam. The delegate concluded that this was insufficient harm to amount to persecution. The applicant has not provided further information to substantiate his claims since the decision of the delegate. Country information The DFAT Country information Report Viietnam, states the following about the risk of expressing political opinions in Vietnam:[1][1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 11 January 2022.3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy….3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government.3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.…..3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

Decision

Reasons for decision

No supporting documents or evidence were provided with the application. The applicant answered ‘no’ to questions in the visa application asking whether he had ever applied for refugee status or protection in another country, whether he had been charged with any offence awaiting legal action, whether he had been the subject of an arrest warrant, whether he was aware of being the subject of a criminal investigation or whether he had criminal charges pending against him. Delegate’s decision The Delegate refused the application on the basis that the applicant was a political activist with a low profile and would at best be detained for one day and then released if he returns to Vietnam. The delegate concluded that this was insufficient harm to amount to persecution. The applicant has not provided further information to substantiate his claims since the decision of the delegate. Country information The DFAT Country information Report Viietnam, states the following about the risk of expressing political opinions in Vietnam:[1][1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 11 January 2022.3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy….3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government.3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.…..3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

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 EVIDENCEApplicant’s claims In his application for a Protection visa, the applicant states that he was born on [date]. He has a partner born in [year], and two sons born in [year] and [year]. He has a mother, father, sister and brother living in Vietnam, and an aunt who is an Australian citizen. The applicant travelled to Australia on a Sponsored Family visa on [date] November 2017 and applied for a Protection visa on 31 May 2018. The delegate refused the application on 5 March 2019. In his application for a Protection visa, the applicant made the following claims:I was threatened by the Vietnamese police for expressing my concerns about China's invasion of Spratly and Paracel islands and the facts that the Vietnamese authorities did not take necessary actions to stop such invasion.I would suffer harm and mistreatment from the Vietnamese authorities. Further details will be provided.As the Vietnamese Communists would not want to upset the Chinese Communists, they would carry out tough measures to oppress Vietnamese people who dare to stand up against China's invasion. No supporting documents or evidence were provided with the application. The applicant answered ‘no’ to questions in the visa application asking whether he had ever applied for refugee status or protection in another country, whether he had been charged with any offence awaiting legal action, whether he had been the subject of an arrest warrant, whether he was aware of being the subject of a criminal investigation or whether he had criminal charges pending against him. Delegate’s decision The Delegate refused the application on the basis that the applicant was a political activist with a low profile and would at best be detained for one day and then released if he returns to Vietnam. The delegate concluded that this was insufficient harm to amount to persecution.