1922908 (Refugee) - [2023] AATA 2521

1922908 (Refugee) [2023] AATA 2521 (28 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jessica Schulman
CASE NUMBER:  1922908
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Luke Hardy
DATE:28 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2023 at 11:33am
CATCHWORDS

REFUGEE – Protection visa – Vietnam – loan sharks – membership of particular social
groups – victims of domestic and family violence from their families – Single and/or divorced women – risk of family violence is in the past – being a person convicted of a crime whilst abroad – criminal conviction –clearly contradictory evidence– delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [Ms A], is a citizen of Vietnam. As she told me, she arrived in Australia on [date] January 2016 on a [tour] and absconded from the tour group after a day and a half. Her visitor visa expired on [date] April 2016 and she became an unlawful non-citizen. Previous married, she divorced her husband (who remained in China) at some stage between the date of her arrival in Australia and [date] October 2019, when she married an Australian citizen.
Meanwhile, [Ms A] had lodged a protection visa application on 30 May 2018, over two years after she arrived here.
The delegate refused to grant the visa on 16 August 2019. [Ms A] lodged a merits review application with this Tribunal on 17 August 2019, the day after being notified of the delegate’s decision.
[Ms A] was arrested and charged in a matter of cannabis cultivation in 2020. She told me she was convicted and jailed for four-and-a-half years with a non-parole period of three years. She was released into immigration detention and is now in community detention.
[Ms A] appeared before the Tribunal on 16 June 2023 to give evidence and present arguments. She was accompanied by her adviser, a Legal Aid lawyer. A colleague of the adviser attended as an observer.
The Tribunal hearing was facilitated by two interpreters in the Vietnamese-English medium. The first interpreter appeared by video; the second, after a one-hour adjournment, by telephone.
I am satisfied that [Ms 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.

Continue reading 1922908 (Refugee)

Details

AGLC: 1922908 (Refugee) [2023] AATA 2521
Case: [2023] AATA 2521
Decision Date: 28 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ms A against a decision of the delegate of the Department of Home Affairs to refuse her application for a protection visa. Ms A, a national of Vietnam, claimed she feared persecution upon return to her home country due to her membership in particular social groups: those who have borrowed money from loan sharks, pawnbrokers, and/or gangsters; women who have been victims of domestic and family violence; women at risk of domestic and family violence; and single and/or divorced women. She alleged that her husband, his family, and individuals associated with their illegal moneylending business posed a threat of physical beatings, torture, cruel and inhuman treatment, and arbitrary deprivation of life. Ms A contended that Vietnamese authorities were unwilling or unable to protect her, citing past negative experiences with the police and the pervasive influence of her husband's family.

The Tribunal was required to determine whether Ms A had a well-founded fear of persecution for a Convention reason, and whether the Vietnamese authorities were unable or unwilling to protect her. This involved assessing the credibility of her claims, considering the evidence presented, and evaluating the risk of harm she faced if returned to Vietnam. The Tribunal also had to consider the weight to be given to Ms A's delay in lodging her protection visa application and any potential contradictions in her evidence.

The Tribunal affirmed the delegate's decision, finding that Ms A had not established a well-founded fear of persecution. While acknowledging the serious allegations of past domestic and family violence and her association with individuals involved in moneylending, the Tribunal found significant credibility concerns. These concerns were informed by inconsistencies and a lack of corroboration for key aspects of her claims. The Tribunal also gave negative weight to Ms A's delay in lodging her application. Ultimately, the Tribunal was not satisfied that Ms A met the criteria for a protection visa under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth), and consequently, she could not be granted the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the purposes of this review, [Ms A] submitted a copy of the delegate’s decision. The delegate gave negative weight to [Ms A]’s apparent delay in lodging her PV application.Evidence to the Tribunal The Tribunal originally invited [Ms A] to a hearing that was to be held on 2 May 2023. A request for postponement was received from a newly-appointed representative who also sought access to [Ms A]’s files under FOI. The Tribunal agreed to this request and later facilitated easier access to the Department’s file in this matter. The Tribunal was then able to schedule a hearing for 16 June 2023. Prior to the hearing the Tribunal received from [Ms A] a statement of claims, a covering submission from her adviser, reports from DFAT and the UK Home office, a document discussing gender-based violence in Vietnam, and testimonial letters from her mother and daughter. The covering submission summarised [Ms A]’s substantive claims:[Ms A] is seeking protection in Australia, and not to return to her home country – Vietnam – owingto a well-founded fear of being persecuted on the basis of her membership of particular socialgroups:·People who have borrowed money from loan sharks, pawnbrokers and/or gangsters·Women who have been victims of domestic and family violence from their families·Women who are at risk of domestic and family violence (DFV)·Single and/or divorced womenThe people [Ms A] fears harm from in Vietnam include:·Her husband·Her in laws (including mother in law, father in law and sister in law)·People who work for her husband’s family in their illegal moneylending businessThe harm she fears includes:·Physical beatings·Torture·Cruel and inhuman, and degrading treatment or punishment·Arbitrary deprivation of her life[Ms A] maintains there is nowhere in Vietnam where she can go to be safe, and that the authorities of Vietnam are unwilling or unable to protect her, for reasons including her gender.Additionally, [Ms A] claims she faces a real risk of being arbitrarily deprived of her life, torture, cruel and inhuman and degrading treatment and punishment if she is removed from Australia. [Ms A]’s own statement of claims reads as follows:1. My name is [Ms A]. I am a Vietnamese national.2. I was born on [date] in Hai Phong, Vietnam.3. I have two children from my first marriage: a son and a daughter. My daughter’s name is [name], born [date]. My son’s name is [name] [date].4. I come from a very poor farming family. When I was in [a grade] at school, myfather died. This put a lot of financial pressure on my family.5. When I was [age] years old, I got married to [name]. My husband’s family are pawn brokers, gangsters and loan sharks. People borrow money from them, and they charge very high interest. When people cannot pay the interest on the loan, they think nothing of threatening, assaulting them physically or even killing them. They don’t believe the law applies to them, and regularly commit crimes in order to financially support and protect the family.6. My in[-]laws are known to put people in the hospital for failing to pay their loansback.7. I know this because I lived with the family for more than 10 years. The familyhad people working for them. They would say things like “I went to visit so[-]and-so and now they are in the hospital.”8. My husband’s family did not approve of me because I came from such a poor family. They treated me worse than a dog. For example, I was not permitted to eat with the family at the dinner table. I was only allowed to eat my meal after everyone had finished eating. I would regularly cry into my food.9. Over the years I lived with my in[-]laws, I was verbally and physically assaulted by my sister-in-law and my parents in law.10. My husband was also physically abusive. He would hit me almost every singleday.11. When I was [pregnant], my sister-in-law pushed me down the stairs. Iwas very lucky I did not miscarry.12. After my daughter was born, I decided to report the abuse from my husband and his family to the police. I reported the abuse at the police station in [a] province within Hai Phong on two separate occasions, but the police didn’t do anything.13. My children witnessed the abuse I endured from their father and his family.This has affected them to the point that my daughter says she never wants tohave a boyfriend or get married.14. When my daughter was [age] years old, I borrowed money from my mother-in[-]law.At the time I felt at the time I had no choice. I borrowed 300,000,000 DONG which is the equivalent of about $20,000 Australian dollars. My in[-]laws charged me very high interest rate of 9,000,000 DONG per month. I opened a [shop] but it was not successful and I closed it down.15. I was only able to pay the interest rate for a few months after opening the shop but then I had to close the shop because I wasn’t making any money. My father-in-law, husband and sister-in-law beat me, and the beatings were worse than before. My husband used cane and stick to beat me. My father-in[-]law also used a cane to beat me. They would beat me all over my body including my head and face. I had bruises on my body because of the beatings.16. I felt I had no choice but to escape the situation, and I travelled to Australia in January 2016. I fled without telling my husband or my in[-]laws.17. When I arrived to Australia, I found the courage to tell my husband I wanted adivorce.18. My husband in Vietnam did not want to sign the divorce papers until I had paid back the loan. I managed to convince him to sign the divorce papers even though I had some of the loan to repay.19. On [date] October 2019, I married [name], and he is an Australiancitizen.20. We had some problems. My husband was also abusive towards me. In December 2019, my husband picked up a knife in the middle of an argument with me and tried to kill me. This was not the last time he did this to me. I often felt as though my life was in danger.21. I continued to repay the loan to my in[-]laws, up until 25 March 2020 when I was arrested.22. I am still in regular contact with my children and my mother. My children tell me that my husband’s mother told them if I return to Vietnam, no matter where I try to hide, they will find me and kill me.23. I believe this threat is real. My husband’s family are very capable of hunting a person down and killing them with no remorse.24. I believe if I return to Vietnam I will be killed by my husband’s family ...25. I cannot relocate to anywhere in Vietnam and be safe. My in[-]laws have connections all over Vietnam. They have people all over the country that follow their direction. It will be easy to find me ...26. I don’t believe the authorities can protect me from the harm I fear from my in[-]laws and my ex-husband.27. I have reported the abuse I experienced from my husband and in[-]laws on two separate occasions to the police. Nothing happened.28. Violence against women in the home is not important to the police in Vietnam. Women’s problems are considered insignificant and are not taken seriously.29. In addition to this, my in[-]laws are very easily able to pay their way out of trouble. I know that they have done this before.30. This statement was read to me with the assistance of a Vietnamese interpreter and this statement is true to the best of my knowledge.

Decision

Reasons for decision

For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore she does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that she is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.DECISION

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims to the former Department of Immigration (the Department) [Ms A] is from Hai Phong, a coastal city to the east of Hanoi. She was married in Vietnam and bore a daughter in [year] and son in [year]. Her daughter is now [age] and attends university where she is studying [a major] with a view to a career in [a field]; she will graduate in 2024. [Ms A]’s son is now [age] and is about to complete secondary school. Both of [Ms A]’s children have usually resided with their father and paternal grandmother in Hai Phong, although the daughter is currently boarding close to her campus in Hanoi. [Ms A]’s original claims to the Department were brief and unsupported:I LEFT VIETNAM BECAUSE … THERE ARE SOME PEOPLE … TRYING TO KILL MEI MIGHT GET KILL [sic] WHEN I GET BACK TO VIETNAM Prompted in the application form to say whether she might be able to relocate to avoid harm, [Ms A] said:WHEREVER I GO THEY STILL CAN FIND ME. Prompted to give details about the type of harm or mistreatment she feared, about the person or people who would be responsible for the harm or mistreatment, and about why they would harm or mistreat her, [Ms A] said:I MIGHT GET KILL [sic] Prompted to explain why state protection would be unavailable, [Ms A] said:NO ONE CARE ABOUT MY SAFETYNESS [sic] [Ms A]’s PV application was typed in English. It is clear she had assistance from somebody as she claimed to speak no English and claims still to speak very little. She nevertheless claimed to have received no substantive or interpreting assistance in completing the application. For the purposes of this review, [Ms A] submitted a copy of the delegate’s decision. The delegate gave negative weight to [Ms A]’s apparent delay in lodging her PV application.Evidence to the Tribunal The Tribunal originally invited [Ms A] to a hearing that was to be held on 2 May 2023. A request for postponement was received from a newly-appointed representative who also sought access to [Ms A]’s files under FOI. The Tribunal agreed to this request and later facilitated easier access to the Department’s file in this matter. The Tribunal was then able to schedule a hearing for 16 June 2023. Prior to the hearing the Tribunal received from [Ms A] a statement of claims, a covering submission from her adviser, reports from DFAT and the UK Home office, a document discussing gender-based violence in Vietnam, and testimonial letters from her mother and daughter. The covering submission summarised [Ms A]’s substantive claims:[Ms A] is seeking protection in Australia, and not to return to her home country – Vietnam – owingto a well-founded fear of being persecuted on the basis of her membership of particular socialgroups:·People who have borrowed money from loan sharks, pawnbrokers and/or gangsters·Women who have been victims of domestic and family violence from their families·Women who are at risk of domestic and family violence (DFV)·Single and/or divorced womenThe people [Ms A] fears harm from in Vietnam include:·Her husband·Her in laws (including mother in law, father in law and sister in law)·People who work for her husband’s family in their illegal moneylending businessThe harm she fears includes:·Physical beatings·Torture·Cruel and inhuman, and degrading treatment or punishment·Arbitrary deprivation of her life[Ms A] maintains there is nowhere in Vietnam where she can go to be safe, and that the authorities of Vietnam are unwilling or unable to protect her, for reasons including her gender.Additionally, [Ms A] claims she faces a real risk of being arbitrarily deprived of her life, torture, cruel and inhuman and degrading treatment and punishment if she is removed from Australia.