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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 30 June 2014 and the delegate refused to grant the visa on 1 May 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994 (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for…
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 1920552 (Refugee)
Sign in free to access the full text
Details
AGLC
1920552 (Refugee) [2020] AATA 2142
Case
[2020] AATA 2142
Decision Date
CaseChat Overview and Summary
The applicant, a Vietnamese national, sought review of a decision to refuse him a protection visa. The matter was remitted to the Tribunal by the Federal Circuit Court following an earlier decision to quash the Tribunal's initial determination. The applicant, a Catholic, claimed to have engaged in environmental activism and pro-life protests in Vietnam, which he asserted led to an imputed political opinion and opposition to the government. He also alleged unlawful departure from Vietnam and violent police interrogation.
The Tribunal was required to determine whether the applicant held a well-founded fear of persecution for an essential or significant reason, including his actual or imputed religious beliefs or activities, or his unlawful departure from Vietnam. The Tribunal also had to consider whether there was a real risk of significant harm to the applicant under the complementary protection provisions of the Act, which involved assessing the reasonableness of relocation within Vietnam, the availability of state protection, or whether any risk was faced by the population generally.
The Tribunal affirmed the delegate's decision to refuse the protection visa. It found that the applicant's claims of persecution for religious reasons lacked credibility due to unsatisfactory evidence and inconsistencies with country information. The Tribunal noted the prevalence of Catholicism in Vietnam and its institutional acceptance by the state, concluding that the applicant's faith-based activities were unlikely to have attracted adverse attention from the authorities. Furthermore, the Tribunal found that the applicant did not hold a well-founded fear of persecution related to his unlawful departure from Vietnam. The assessment of risk for complementary protection purposes was found to be the same as for convention protection.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
[In] June 2019, [the judge] determined that a writ of certiorari issue, quashing the 10 July 2015 decision of the Tribunal in the first instance. His Honour further issued a writ of mandamus, requiring the Tribunal to re-hear the application for review made by the applicant on 7 May 2015. Accordingly, this matter was freshly constituted to the Tribunal as presently constituted.WHAT IS THE BACKGROUND OF THIS APPLICATION?Tribunal hearings Following the Federal Circuit Court Orders of [the judge], made [in] June 2019, the applicant appeared before the Tribunal in person to give evidence and present arguments at three hearings held over six dates. All hearings were held using the services of interpreters fluent in both English and the Vietnamese language. The applicant’s first hearing with the Tribunal as presently constituted was on 8 October 2019, to establish the fresh review. A second hearing scheduled for 29 October 2019 was adjourned after there was an issue with the swearing in of the applicant (discussed separately below) and a subsequent request for recusal by the interpreter on professional grounds. According to the interpreter, he had prior personal knowledge of the applicant, and the interpreter expressed the view that this could affect his professional impartiality as an interpreter. The applicant was invited to make submissions on this point and expressed satisfaction with the interpreter continuing. It is uncommon for an interpreter to request their recusal from a professional engagement with the Tribunal. Given the high professional standards demonstrated by the interpreter in question over many engagements, significant weight was placed on his own judgement about how this engagement might proceed. Accordingly, the request was granted, without drawing any adverse inference about the request relating to either the applicant or the interpreter. The second hearing was resumed, briefly, on 7 November 2019, before being adjourned once again due to interpreter difficulties. The second hearing was resumed (and completed) on 20 November 2019. A third hearing was held with the applicant on 28 November 2019. This hearing was adjourned before being resumed and completed on 16 December 2019. The applicant was not represented in this application by a registered migration agent, although he had been so represented during his initial application. All Tribunal hearings were held with the assistance of an interpreter fluent in the Vietnamese and English languages. DECISION MAKING FRAMEWORKPresident’s Directions I have had regard to President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018; in particular: · That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[2]· That: ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[3][2]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).[3]At [8.1].Applicable legal principlesApplicant credibility
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Based on the information before me, I find that the applicant is a citizen of Vietnam, which is also the receiving country for the purposes of the refugee and complementary protection assessments. DECISION SUMMARY The applicant is a Vietnamese man from [Village 1], Quynh Lu’u District, Nghe An Province, Vietnam. The applicant is married to a woman from the same village. Like the majority of the people in this village, they are life-long devotees of the Catholic religion. Together, they have [specified biological and adopted children]. The applicant’s two daughters live and work in Hanoi; one works in [a] section of a [firm] and the other [works] at a [business 1]. His eldest son is [a] student at university in [another city]. He entered Australia unlawfully [in] April 2013 on vessel [numbered]. As mentioned above, the applicant applied for a protection visa on 30 June 2014. The delegate refused to grant the visa on a number of grounds. Firstly, the delegate found that the applicant did not experience persecution from agents of harm associated with, or connected to, the Vietnamese state for the essential or significant reason of his actual or imputed religious beliefs or activities. This finding was based on the prevalence of Catholicism in Vietnam and its institutional acceptance by the Vietnamese state. It was also based on findings that none of the applicant’s faith-based activities would have been such as to attract the adverse attention of the Vietnamese authorities. Second, the delegate did not accept that the applicant held a well-founded fear of persecution in Vietnam for the essential and significant reason of his personal data being unlawfully accessed due to a data breach affecting the databases of the Department in February 2014. Third, the delegate found that the applicant did not hold a well-founded fear of persecution in Vietnam for the essential and significant reason of his unlawful departure from Vietnam in 2013. The threshold for the assessment of a real risk of significant harm to an applicant in a receiving country under the complementary protection obligations at s.36(2)(aa) of the Act is the same as that which applies under the assessment of a real chance of serious harm to an applicant under the Convention at s.36(2)(a). Given this, and the delegate’s findings relating to the credibility of the applicant’s core claims and country information, the delegate refused the 30 June 2014 application for a protection visa lodged by the applicant. After reviewing this application for protection, I have concluded, based on my own assessment, that the decision should be affirmed. In particular I find, below, that the applicant’s claims to have been a target of persecution in Vietnam for the essential and significant reason of his actual or perceived religious beliefs or activities lack credibility in key respects. This is due to a combination of his unsatisfactory evidence about the key events in question and the inconsistency of important aspects of his evidence with credible country information.
Ratio Decidendi
Legal Principle Established
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.WHAT ARE THE APPLICANT’S CURRENT CLAIMS?Personal circumstances As mentioned above, the applicant claims to have been born and lived all of his life in [Village 1 in] Quynh Lu’u District, Nghe An Province, Vietnam. The applicant’s parents operated a [business] making [specified] products. Following his national service, the applicant worked for his parents on the farm, also producing [other products]. The applicant married a woman from the same village. Like the majority of the people in this village, they are life-long devotees of the Catholic religion. Together, they have [specified biological and adopted children]. The two daughters live and work in Hanoi; one works in [a] section of a [firm] and the other [works] at a [business 1]. [One son] is a student at university in [another city]. The remaining biological and adopted [children] live in [Village 1] with the applicant’s wife and are school-aged students. The applicant’s wife supports them by running a [market] stall in a village approximately [distance] inland from [Village 1].[48][48]Cf para [6] above. The applicant developed and operated a successful [services and products] business in Vietnam prior to departing for Australia. The assets of this business remain in Vietnam. The applicant was an active member of his local Catholic parish, serving [on specified] committees between 2008 and 2013. He also participated in anti-abortion campaigns and protests. Members of his own family and that of his wife have experienced official sanctions in Vietnam for their protest activities, some of which appear to have been religiously motivated.Departure from Vietnam On the advice of a distant cousin, the applicant arranged to leave Vietnam illegally using the services of people-smugglers. He left [Village 1] and travelled to Vinh City where he made contact with the smugglers. They told him to travel to Saigon (Ho Chi Minh), which the applicant did by bus.