1909662 (Refugee) - [2024] AATA 2700

1909662 (Refugee) [2024] AATA 2700 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Thi Nguyet Doan (MARN: 1795946)
CASE NUMBER:  1909662 and 2102171
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:8 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal:
a.affirms the decision not to grant the applicant a protection visa in matter 1909662 (Safe Haven Enterprise visa application made on 16 June 2017); and
b.sets aside the decision in matter 2102171 to refuse the applicant’s Safe Haven Enterprise visa application made on 25 September 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 08 February 2024 at 2:34pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – Full Federal Court remittal – arrival at Territory of Ashmore and Cartier Islands – family’s land confiscation – participation in protests – arrested – escaped – hiding for one year prior to departure – Viet Tan member – Catholic religion – mental health issues – – ongoing interest from Vietnamese police – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48A, 48B, 65, 91K, 417, 427(2), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MICMSMA v CBW20 [2021] FCAFC 63
MIAC v SZQRB (2013) FCR 505

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 27 March 2019 to refuse to grant the applicant a subclass XE-790 Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).

BACKGROUND

The applicant claims to be a citizen of Vietnam.
According to Department of Home Affairs records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 25 February 2015. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by 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 1909662 (Refugee)

Details

AGLC: 1909662 (Refugee) [2024] AATA 2700
Case: [2024] AATA 2700
Decision Date: 8 February 2024

CaseChat Overview and Summary

The applicant, a citizen of Vietnam, sought review of a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of a protection visa. The applicant claimed to fear persecution in Vietnam due to his political activities as a member of Viet Tan, his participation in protests leading to his arrest and subsequent escape, and his Catholic religious beliefs. He also raised concerns about his mental health and alleged ongoing interest from Vietnamese police. The matter was remitted to the Federal Circuit and Family Court of Australia by the Full Federal Court.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, namely political opinion or religious belief, such that he ought to be granted a protection visa under the *Migration Act 1958* (Cth). This required the court to assess the applicant's claims against the objective country information for Vietnam and to determine the applicant's credibility.

The court considered the applicant's account of his experiences, including the confiscation of his family's land, his participation in protests, his arrest, and his subsequent period in hiding. It also took into account his membership in Viet Tan and his religious affiliation. However, the court identified significant credibility concerns arising from inconsistencies and a lack of corroborating evidence in the applicant's testimony. After carefully weighing the applicant's claims against the available country information, the court found that the applicant had not established a well-founded fear of persecution for a Convention reason.

The court affirmed the decision of the Immigration Assessment Authority to refuse the protection visa.

Orders