1924437 (Refugee)
[2021] AATA 5308
•25 November 2021
1924437 (Refugee) [2021] AATA 5308 (25 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1924437
COUNTRY OF REFERENCE: Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:25 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 November 2021 at 9:09am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – membership of student group opposed to government – banned from school, difficulty finding work and family mistreated – not prevented from departing – delay in applying for protection – applied after student visa cancelled and period as unlawful non-citizen – consent to decision without hearing – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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
Background
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia [in] April 2014 and applied for a protection visa on 5 December 2018.[1]
[1] Movement details taken from Department decision, a copy of which was provided by the applicant to the Tribunal.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated that he was born in [Hamlet], [Commune], Nghe An province. He stated that both of his parents are Vietnamese citizens. He stated that he completed secondary school and then undertook [a] course in Vietnam at ‘[Institution]’.
The applicant stated that he had left Vietnam because since he was a secondary school student and a university student, he had had an open mind about the ‘community regime’, with one party, no democracy and no human rights. The local authorities are harsh and corrupt. He joined a young student group who opposed the government. Local authorities warned him and banned him from school and he had difficulty finding work. The family became stressed and mentally affected and strongly mistreated. He had an open mind to move abroad to study and find work to support his family back home. So he escaped the communist regime and continued to fight peacefully to demand the Vietnamese government be changed.
The applicant stated that if he returns to Vietnam, he will face possible demands, the banning of relatives who are still fighting for human rights and democracy, court proceedings, bans from finding work and his family becoming further stressed. The applicant stated he had experienced harm in Vietnam and referred to his earlier answers as evidence of this. He stated that he had not sought help in Vietnam because the communist regime has no democracy or human rights and is corrupt. He did not try and move for the same reasons. He believes he will be mistreated if he returns and does not think the authorities will protect him because the Vietnamese communist regime has never offered protection to its citizens. He does not believe he could relocate because there is no financial support offered from local authorities and no financial aid to travel around the world to seek democratic countries.
The applicant was not invited to an interview with the Department. A delegate of the Department considered that political activists are likely to be monitored and are frequently prevented from leaving the country. The applicant’s ability to leave the country indicated he is not of interest to authorities. The delegate was not satisfied the applicant is a refugee as they were not satisfied there is a real chance he faces persecution upon return due to political activism or that he fears harm for any other reason in s.5J(1)(a). The delegate considered the same country information and was not satisfied the applicant faces a real chance of significant harm upon return to Vietnam. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 16 November 2021 the Tribunal wrote to the applicant stating that it had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing by MS Teams video on 1 December 2021. At the time of the hearing, the Tribunal’s Melbourne Registry was holding few in-person hearings due to the COVID-19 pandemic and the Tribunal considered it appropriate to conduct the hearing by video, having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter, and having regard to the delay in this matter if the Tribunal did not hold the hearing by video.
On 22 November 2021, the applicant provided a ‘Hearing Response’ to the Tribunal, in which he stated that he would not be participating in the hearing on 1 December 2021 and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. This matter has therefore been determined on the evidence available to the Tribunal.
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) (the Regulations). 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.
Assessment, Reasons and Findings
The applicant travelled to Australia on a Vietnamese passport and has at all times claimed he is a citizen of Vietnam. The Tribunal accepts the applicant is a Vietnamese citizen and has assessed his claims against Vietnam as his country of nationality.
In assessing the applicant’s claims, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal is prepared to accept that the applicant was born and lived in Nghe An province and that he completed secondary school and then undertook further qualifications to work as an [Occupation]. However, for the following reasons, the Tribunal does not accept the applicant’s claimed reasons for having left Vietnam and for fearing return to Vietnam.
Firstly, the applicant’s delay in claiming protection. The delegate’s decision (a copy of which was provided by the applicant to the Tribunal) states that the applicant arrived in Australia [in] April 2014 as the holder of a student visa, that the applicant’s student visa was cancelled on 14 June 2016 and that he claimed protection on 5 December 2018. The Tribunal would expect that, if the applicant had left Vietnam in the circumstances he claims, he would have sought protection in Australia at the earliest opportunity. The significant delay in the applicant claiming protection leads the Tribunal to doubt that he left Vietnam for the reasons stated or that he fears harm upon return to Vietnam for the reasons stated.
Secondly, the period of time in which the applicant did not hold a visa to remain in Australia. The delegate’s decision states that the applicant’s student visa was cancelled on 14 June 2016. The applicant’s two-and-a-half year delay spent without a valid visa in Australia adds further doubt for the Tribunal that the applicant left Vietnam for the reasons he states or that he fears harm upon return to Vietnam for the reasons he states.
And thirdly, the applicant’s failure to attend the Tribunal hearing. The applicant was invited to attend a Tribunal hearing on the basis that the Tribunal was unable to make a favourable decision on the information before it. The applicant declined to attend the hearing and requested the Tribunal make a decision on the information before it. The Tribunal would expect that, if the applicant was genuine in his claims, that he would have availed himself of every opportunity to prosecute his application. The applicant’s failure to attend the Tribunal hearing further add to the Tribunal’s doubts that the applicant’s claimed harm is for the reasons stated.
For these reasons, the Tribunal does not accept the applicant joined a student group who opposed the government or that the local authorities warned him or banned him from school or work, or that his actions made it difficult to find work. The Tribunal does not accept the applicant’s family was stressed, mentally affected or strongly mistreated because of the applicant’s political activities. The Tribunal does not accept the applicant escaped and continued to fight peacefully to demand the government changed.
For the same reasons, the Tribunal does not accept that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant faces demands, court proceedings, the banning of relatives, being banned from work or his family becoming stressed. The Tribunal does not accept the applicant faces mistreatment upon return to Vietnam because of any past political activities. The Tribunal is not satisfied the applicant faces a real chance of serious harm in Vietnam because of his political opinion or for any other reason. The Tribunal finds there is not a real chance the applicant faces persecution for any reason, if he returns to Vietnam now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). For the reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
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.
Tamara Hamilton-Noy
MemberATTACHMENT - 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.
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Proportionality
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