1920203 (Refugee) - [2024] ARTA 27

1920203 (Refugee) [2024] ARTA 27 (4 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  1920203

Tribunal:General Member M O'Loughlin
Place:Adelaide
Date: 4 November 2024

Decision: The Tribunal affirms the decision under review.

Statement made on 04 November 2024 at 4:01pm

CATCHWORDS
REFUGEE – Protection Visa – Vietnam – religion – Catholicism – applicant does not now claim that there is a real risk he will suffer harm – applicant is in a long-term relationship with an Australian citizen – Australian citizen child – applicant does not have a well-founded fear of persecution – referral to the Minister – decision under review affirmed

LEGISLATION
Administrative Review Tribunal Act 2024, ss 105, 106
Migration Act 1958, ss 5, 46, 65, 351, 417, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Safe Haven Enterprise Visa (Class XE) Subclass 790 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This matter falls within country of reference Vietnam.
The visa applicant applied for the visa on 8 September 2016. On 19 September 2017 The delegate refused to grant the visa on the basis that that they were not satisfied the applicant faces a real risk or a real chance of relevant harm as contemplated by the Act if he is returned to Vietnam.
On 17 November 2017 the applicant sought review by the then Administrative Appeals Tribunal (AAT) of the delegate’s decision of 19 September 2017.
The AAT found that it did not have jurisdiction as the application for review had been made outside the time allowed. The applicant sought judicial review of that decision in the Federal Circuit Court.
[In] July 2019 the Federal Circuit Court noted the respondent to that action concedes that the AAT decision is affected by jurisdictional error because the notification letter to the applicant did not clearly state the time by which the application to the AAT was to be made.
The Federal Circuit Court found that in those circumstances the AAT erred in finding that the application to it for review was out of time. The court found that the AAT was therefore wrong in finding that it had no jurisdiction to entertain the review.
By consent the court ordered the issue of a writ in the nature of certiorari directed to the AAT quashing the decision that it did not have jurisdiction to entertain the review application, and a writ of mandamus issue directed to the AAT requiring the application for review to be determined according to law.
On 14 October 2024 the AAT was abolished, and its functions and powers were assumed by this Tribunal.
This decision is delivered in satisfaction of that writ of mandamus.
This decision is made under s 105 of the Administrative Review Tribunal Act 2024.
The applicant was represented in relation to the review.
REQUEST TO CONSIDER THE APPLICATION WITHOUT A HEARING
The applicant made submissions through his representative on 1 September 2024 attaching a statutory declaration in the applicant’s name and further items in support of the application.
The submissions noted that the applicant understands that in the time that has passed since he left Vietnam, the situation in the part of the country where he lived has improved. Further, an acquaintance of the applicant’s who has returned did not experience any difficulty with the Vietnamese authorities despite having left the country illegally[1].
[1] Submissions Australian Migration Options Pty Ltd, Libby Hogarth 1/09/2024 part 2 at 2.1 to 2.4.
The applicant acknowledges that his claims for protection may no longer have merit[2].
[2] Ibid at 2.5.
The applicant asks that the Tribunal consider the matter on ‘compelling and compassionate grounds’ and refer the case to the Minister for intervention.
The applicant states that now the ‘…sole purpose of this Review is to ask the member to refer the matter to the Minister for intervention under s 417 of the Migration Act…”[3].
[3] Ibid at 2.8
The further information that the applicant has presented relates to his circumstances in Australia, his business, his family, his employees, and his social connections to this country.
The circumstances in which the Tribunal may reach a decision without hearing are set out in s 106 of the Administrative Review Tribunal Act 2024.
S 106(3) is relevant to this matter.
S 106(3)(a) is satisfied because the only parties to the application are the applicant and a non-participating party.
S 106(3)(b) is satisfied because the applicant has requested the Tribunal to make its decision without holding the hearing as contemplated in s106(3)(b)(ii).
The Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding and so s106(3)(c) is met.
The Tribunal is therefore satisfied that it may reach a decision in this matter without a hearing.
CRITERIA FOR A PROTECTION VISA
Although the applicant no longer claims to be eligible for a protection visa, the application has not been withdrawn and the Tribunal must consider it.
The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, be eligible for a protection visa, the applicant must satisfy either:
·s36(2)(a)- the “refugee criterion”, or
·s36(2)(aa)- the “complementary protection criterion”.
S36(2)(a) - REFUGEE CRITERION
Section 36(2)(a) of the Act 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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
S 5J defines “well-founded fear of persecution”. S 5J(1)(a)(b) and (c) establish prerequisites that must all be satisfied to come within the definition. S 5J(1)(a) provides that an applicant will come within the definition if he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”).
The Tribunal has had regard to the applicant’s submissions and to his statutory declaration of 30 August 2024 and finds that the applicant does not fear being persecuted for a refugee reason.
The Tribunal finds that the applicant is not a refugee as defined and does not satisfy s36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION
Having found that the applicant does not satisfy the refugee criterion the Tribunal moves to consider whether he satisfies s 36(2)(aa), the complementary protection criterion.
To meet s36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to Vietnam there is a real risk that he will suffer significant harm.
In his Protection Visa Application, he claimed to be at risk of harm because of his Catholicism.
The applicant does not now claim that there is a real risk he will suffer harm of any kind.
The Tribunal has had regard to the relevant DFAT report[4]. At 3.30 and 3.31 the report says that Catholics generally do not experience societal discrimination and in general are able to worship freely.
[4] DFAT Country Information Report Vietnam 11 January 2022
The Tribunal accepts that whatever risk of harm the applicant may have faced is no longer relevant.
The Tribunal finds that the applicant does not meet the complementary protection criterion and does not satisfy s36(2)(aa).
REQUEST FOR MINISTERIAL REFERRAL
The applicant asked the Tribunal to consider referring this matter to the Minister under s 417 of the Act.
Since that request was made there have been relevant amendments to the Act, including the repeal of s 417.
The Tribunal notes that s 351 of the Act applies to this decision by virtue of s 351(1A) (c) and, insofar as it affords the Minister a discretion to substitute a more favourable decision for that of the Tribunal, is substantially similar to s 417. The Tribunal will therefore treat the request to refer this matter to the Minister under s 417 as being a request to refer for consideration under s 351.
The Tribunal has had regard to the Minister’s guidelines on ministerial powers (s315, s417 and s501J).
The tribunal has had regard to the applicant’s current submissions. The Tribunal has not had the opportunity to test the evidence in support of those submissions but observes that the matter may fall within the guidelines.
Further, it does not appear that the matter falls within the range of matters described as ‘inappropriate to consider’ in the guidelines.
In making those observations, the Tribunal has regard to the following:
·The applicant is in a long-term relationship with an Australian citizen, [name], who appears to be the applicant’s de facto partner for the purposes of s5CB of the act.
·They have a child together who was born in [year] and who is an Australian citizen.
·The relationship gives rise to the possibility that there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit.
·The refusal of the applicant’s visa application will result in him being obliged to return to Vietnam. The Tribunal understands that the applicant will apply for a partner visa from Vietnam but that it is likely to be some time before his application can be dealt with.
·The applicant’s child, an Australian citizen, will be deprived of the applicant’s support and guidance in that time.
·The applicant’s partner, an Australian citizen, will be deprived of the applicant’s support and guidance in that time.
·The applicant’s business is unlikely to survive his extended absence and its closure is likely to affect his three employees who are Australian citizens.
·The applicant is barred from making an onshore application for a Partner visa because he is an unauthorised maritime arrival for the purposes of s 46A of the Act.
·There is no evidence that the applicant has been other than truthful in his submissions to the Department or to the Tribunal. The applicant submits that the circumstances in his home country have changed making his protection claims less likely to succeed.
·The applicant has been living in Australia for 14 years in which time he has established a family and a business.
In the circumstances the Tribunal recommends that the Department considers whether this matter falls within the guidelines and takes any appropriate action.
DECISION
The Tribunal affirms the decision under review.
Representative for the Applicant: Ms Libby Hogarth (MARN: 9364758)