1923038 (Refugee)

1923038 (Refugee) [2022] AATA 506 (17 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1923038
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Scott Clarey
DATE:17 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2022 at 11:09am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – anti-Communist – lack of specificity of claim – unlawful non-citizen – delay in lodging the visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
Zhang v RRT & Anor [1997] FCA 423
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 14 August 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 10 September 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations. The applicant applied to the Tribunal for review of this decision on 19 August 2019. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant was invited to appear before the Tribunal on 17 January 2022 to give evidence and present arguments. The Tribunal received email correspondence from the applicant on 12 January stating that she did not wish to appear before the Tribunal and requested a decision be made by the Tribunal ‘on the papers’ on the basis of the documentary evidence before it. As the applicant has requested a decision on the papers, the Tribunal has determined to proceed to a decision without taking any further action. This matter has therefore been determined on the evidence available to the Tribunal. The Tribunal has considered the documentary evidence on the Department’s file and the (limited) additional documentary evidence that has been submitted to the Tribunal. I not that there is no evidence on the Department’s file that the Department ever conducted a formal interview with the applicant.
On the basis of the copy of the applicant’s Vietnamese passport provided to the Department, I accept that she is a citizen of Vietnam and that her identity is as he claims it to be. I accept that Vietnam is her country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
According to the protection visa application form, the applicant is a [age]-year-old woman who was born in Ha Tinh Province in Vietnam on [date]. She indicated that she belongs to the ‘Vietnamese’ ethnic group and is of the Catholic faith. The applicant claimed to have never been married. She stated that her occupation was ‘labourer’. The applicant indicated she last arrived in Australia on [date] December 2013, having departed Vietnam legally. She entered Australia on a student visa.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Vietnam, there is a real risk she will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) 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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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 EVIDENCE
Claims from the protection visa application
The applicant set out her claims for protection in her application form as follows:
Why did you leave that country?
Since I was secondary student, I had open mind that the current Communist government has iron fist rules, say one thing but authorities do another way, distorsion for money in every levels, most importantly un-human. There is no human right in Vietnam at all. A few occasions I point out my opinons in [social media], local authority had warned me and restricted my activities, mis-treated, ignored, watch me. I had joined the young people group who opposse the current communist regime. Authorities have warned me: “anti-state propaganda” is serious crime and would be captured or jail. And distorsion for money. Family become financial havoc; causing psychological forward/emotional distress. I decide to look abroad for further study, and a better working conditions, in order to support family back then.
What do you think will happen to you if you return to that country(s)?
*As mentioned above clause “76”, I would be interview by local authorities, strictly watched/mis-treated or capture for money distorsion.
*Family (parents) would further suffer financial distress. Mentally distress also. No way out or nothing easier to local authorities.
Did you experience harm in that country(s)?
Yes. As deeply mentioned above clause 76.
*Mis-treated un-humanely to all members of family.
Did you seek help within the country(s) after the harm?
No. Every part of Communist country would be same. As the “uniformly laws” apply the whole country.
Did you move or try to move to another part of that country(s) to seek safety?
No. No, as no financial supports
*same issue as clause 79 above.
Do you think you will be harmed or mistreated if you return to that country(s)?
Yes. As same discussed issue above 78/79
Do you think the authorities of that country(s) can and will protect you if you go back?
No. There is no protection to any member who oppose the Communist government (anti-state propaganda)
Do you think you will be able to relocate within that country(s)?
No. As discussed above clause 79/80.
*Will getting worst as facing financial distorsion (if not would be arrested).
Scheduled hearing on 17 January 2022
As noted above, after being sent an invitation to attend a hearing on 17 January 2022, the applicant wrote to the Tribunal and stated that she did not wish to participate in a hearing and requested that a decision be made on her case ‘on the papers’. I note that in the application for the visa under review, the applicant made vague (and at times hard to follow) claims relating to issues in Vietnam. If the applicant had participated in the scheduled Tribunal hearing, I would have given her an opportunity to further ventilate her claims and asked specific questions relating to them. As has been noted above, the applicant chose to waive her right to a hearing, and chose not to engage further in the review process including by providing any significant new/additional information to the Tribunal relating to her claims.
Findings and reasons
A refugee is a person who has, as defined in s 5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim by the person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
I have serious concerns with the applicant’s claims in terms of their lack of specificity, particularly with regard to the particular harms she claimed to fear in Vietnam. I note that the applicant provided vague, terse, mostly one-sentence responses to most questions on the application form relating to the nature of her claims. As noted above, had the applicant attended the scheduled Tribunal hearing, given the general nature of her claims, I would have sought further specific information from her on a range of relevant details. For example, if the applicant had attended the scheduled hearing, I would have asked specific questions about her claimed experiences, including matters related to her claimed expression of anti-government sentiments, including through social media, as was briefly outlined in her protection visa application. I would have taken the opportunity to ask the applicant about how this related to apparent financial issues experienced (or feared) by her and her family. I would have also asked the applicant about her background, ethnicity and religious beliefs. I would have also taken the opportunity to ask her to elaborate on why she thought she could not relocate to another area of Vietnam if required.
I find that the details provided by the applicant about her claims to the Tribunal to be vague, terse, highly generalised and at times semi-coherent. Her claims as submitted do not provide anywhere near the kind of detail that would lead me to be satisfied that she was at risk of serious harm amounting to persecution if she were to return to Vietnam in the foreseeable future. The applicant’s claims in their entirety lack the kind of specific detail that would satisfy me that she had actually experienced adverse treatment or was at risk of suffering persecution as claimed. Given the breadth of unanswered questions and the lack of specific detail relating to her generalised claims, I am not satisfied, on the information before me, that any of these events occurred as claimed.
I am therefore not satisfied the applicant faces a real chance of suffering persecution involving serious harm for reasons of her race, religion, nationality, political opinion (either actual or imputed), or her membership of a particular social group, or for any other reason she has claimed or can be distinguished on the information before me, by the authorities, her family or friends, or anyone else if she returns to Vietnam, now or in the reasonably foreseeable future. I find that the applicant’s fears of persecution on this basis are not well founded.
Accordingly, I am not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act. Therefore, I am also not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
Delay in seeking protection
I also have concerns relating to the timing of the application for protection in considering the genuineness of the applicant’s claims to fear serious harm in Vietnam. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). According to Departmental records, the applicant first arrived in Australia in December 2013 on a student visa. This visa ceased [in] August 2016 and the applicant remained in Australia unlawfully. I note that the applicant applied for the protection visa under review on 10 September 2018, more than two years after she had become unlawful.
When considered in conjunction with my other concerns relating to the applicant’s evidence and claims detailed above, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. Had the applicant chosen to participate in the scheduled hearing, I would have asked her why there was such a long delay between her arriving in Australia and applying for protection. When this issue is considered in conjunction with my other credibility concerns, I find that it suggests that the applicant did not have a well-founded fear of persecution for the reasons claimed and that she made the protection visa application only when she had few other options to remain in Australia lawfully.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
With regard to the applicant’s claim to fear harm, I have considered that the complementary protection provisions provide that there is taken not to be a real risk of significant harm if the non-citizen ‘could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm’: s 36(2B)(b). I note that this test imposes a higher standard of protection from State authorities than the standard referred to in Australian refugee law. The Department’s Complementary Protection Guidelines, for example, state, ‘an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place’. The Guidelines further state ‘[e]ven where there are general measures of state protection in place that would otherwise be considered “reasonable” for the population at large, if there remains a “real risk” of significant harm to the individual in question then Australia’s non-refoulement obligations will be engaged’.
I have considered the applicant’s particular protection needs against this higher standard of protection. Her claims and circumstances giving rise to the claimed fear of harm were not clearly expressed, however, and involved significant gaps in terms of detail in her narrative. The generality of the claims has led me to find that they are not grounded in reality and are not personal to the applicant or anyone she knows. I therefore reject the applicant’s claims in their entirety. It follows that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk she will suffer significant harm.
Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, I find that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.
Conclusions
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 the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under
s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 506

17 January 2022

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