1930445 (Refugee)

1930445 (Refugee) [2020] AATA 3436 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1930445

COUNTRY OF REFERENCE: Vietnam
MEMBER:Nora Lamont
DATE:20 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 July 2020 at 11:38am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – musician – imputed political opinion – Blues singer – inconsistent claims – bribery to avoid summons – lack of profile of any kind – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 36, 65
Migration Regulations 1994, Schedule 2
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 22 October 2019 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 10 October 2019.
The applicant appeared before the Tribunal via teleconference due to COVID 19 on 14 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was not represented in his hearing.
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the information on the departmental file and confirmed at the Tribunal hearing the applicant was born on [date] in Nghe-An Vietnam. His parents and [a sibling] reside in Vietnam.
The applicant presented his initial claims for protection in his visa application on 10 October 2019 as follows: [1] (sic)
#76 I fear for my life. People/other singers were jailed for singing blues music. This is my passion and profession.
# 77 The authorities warned me a couple of times before for my act against the government. That what they accused me for. I bribed them with money to avoid a summons. They will harm me if I return to Vietnam.
#78 I had threats made to me.
#79 Did you seek help? They are police and local government I got nowhere to report to.
#80 Did you relocate? Wherever I go I will sing for a living. It will be the same threats and treatment I would get.
#81 Will you be harmed? I have no doubts I will be harmed and strongly believe so.
#82 can the authorities help? I will not believe it would be my case.
[1] Form 866
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) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vietnam, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Vietnamese passport and states he is a national of Vietnam. The delegate had no concerns about the applicant’s identity. Therefore, the Tribunal has assessed the applicant’s claims against Vietnam as his country of nationality and receiving country.
Tribunal Hearing
At the Tribunal hearing the applicant said that he had a lawyer and that she asked him questions therefore he cannot be sure if there were any mistakes in his application but that the essence of what was in the application was correct.
The applicant said he was living in his [hometown] with his parents and [a sibling]. He used to sing in charity clubs for poor people and orphans. He also sang at various Buddhist temples. He accepted money for some singing other times he did it for charity. He cannot remember when he started singing, he just always has.
The Tribunal asked what type of singer he was, and he said he sang pop songs. He said he was asked to come to Australia and sing for a charity however, he cannot remember the name of the charity now. He performed at [a named venue] one day and one night. The applicant said after a few days of being in Australia his parents called him and said that the authorities had come to their home and issued summonses to him as he was being subversive.
The Tribunal pointed out that this was in contradiction to his written claims in which he stated “The authorities warned me a couple of times before for my act against the government. That’s what they accused me of. I bribed them with money to avoid a summons. They will harm me if I return to Vietnam. [2] The applicant responded that no that was not true, he was here in Australia when the authorities went to his house. He said it must have been a misunderstanding with his lawyer. The Tribunal asked if the applicant had copies of these summons that his parents were given, and he said yes, he gave them to the Department. However, the Tribunal could not find any submissions of summons from the applicant on the Departmental file.
[2] 866 Form application for a protection visa question number 77
The Tribunal went on to ask the applicant if he ever had a run-in with the authorities in Vietnam had before he came to Australia. The applicant said he did, but they just warned him they didn’t give him a summons.
The Tribunal asked why he was targeted as Vietnam is quite open, they have bars and pop bands so why was he their target? The applicant said he was with some friends in a bar singing a song “Where is our Vietnam” and it was being live streamed and people in the bar didn’t like it. He said he left for Australia after that and that is why his parents received the summons.
The Tribunal asked the applicant if he sang “blues” or “pop” songs as in his application he said that he was a “blues” singer but when asked he said he was a “pop” singer. He said he did not know what a “blues” singer was. The applicant later clarified that people in Vietnam use the word “blues” when they sing about love. The Tribunal asked the applicant about the article he gave to the Department titled “A blues singer spent 10 years in a North Vietnam prison for singing about love”. [3] The Tribunal asked why this was relevant given that the article was about a man imprisoned in 1968 during the Vietnam War and that after he was released people were all singing the songs that he was gaoled for. The applicant said because he was singing against the regime.
[3] A blues singer spent 10 years in a North Vietnam prison for singing about love. 14 January 2014. Christopher Johnson PRIs world
The Tribunal asked if the applicant considered himself to be a political person. He said when he was singing the song “Where is my Vietnam” he was expressing his hate of the regime.
The applicant was asked if he had any recorded music and he said he had videos on YouTube and Facebook but took them down for fear of getting into trouble.
The applicant said since being in Australia he has performed here and there but that his parents send him money. When asked what he feared would happen if he returned to Vietnam, he said he would be arrested, and his parents would be in trouble because he has summonses.
Findings
The Tribunal accepts that the applicant is a singer as this is consistent with his original [visa] he came into Australia with, and the Tribunal finds no reason not to find he is a singer. However, for the following reasons the Tribunal has concluded that the decision under review should be affirmed.
First there are many inconsistencies between the applicant’s written claims to the Department and his oral evidence to the Tribunal. His written claims were that he bribed the authorities with money to avoid a summons. Yet in his oral evidence he said that was not true, that he had only been warned but had never been given a summons or bribed the police.
Secondly, the applicant said he feared for his life as others have been gaoled for singing the blues. Yet at the Tribunal hearing the applicant did not know what the blues were and then later said it was love songs. However, the article he gave to the Department was about someone who was in prison in 1968 during the Vietnam war. The article even states that when he got out of prison people were singing the songs he was imprisoned for. The Tribunal finds that the article is irrelevant to the applicant’s claims.
Third, the applicant does not have a profile of any kind, does not have an online presence and does not appear to be a political person. When asked if he was political, he said he sang the song because he is against the government. However, there is nothing in his written claims or during his oral evidence to indicate that he has any political profile or that his music has attracted the ire of the authorities.
Country Information
Vietnam has many pop singers and shows, and singing is an essential part of Vietnamese culture. [4] Further, despite the applicant’s assertions that freedom of music in Vietnam is controlled or monitored by the government to the extent that he is unable to continue singing is not born out in the country information.
[4] >
In addition, Vietnam has its own “Voice” competition on television and a television show called Perfect Edition which showcases talented singers covering famous songs.
Bolero music banned for many years has made a resurgence in Vietnam and country information shows that not only is it popular it is also on television: [5]
In recent years, the change has been dramatic as many overseas singers get permits to return and perform in Vietnam. More young domestic singers have begun to turn to boléro and the audiences have become younger and not limited to any certain class. Singing and listening to pre-1975 music seems to have become trendy in Vietnam.
Not only being allowed to perform, there are even reality shows named Solo with Boléro and Boléro Idol – competitions looking for talents in this once banned genre of music. Most of the invited judges for Solo with Boléro are overseas singers, some of whom used to be banned.
[5] >
The Tribunal is aware that a popular singer Do Nguyen Mai Khoi has been very vocal and political within and outside of Vietnam and as a result she has had issues with government. [6] However, Ms Khoi had been on television, won a state sponsored contest and had a high profile when she became political. The applicant does not have a profile of any kind that would lead the authorities to monitor him or censure him in anyway.
Conclusion
[6] >
For these reasons, whilst the Tribunal accepts that the applicant is a singer, it does not accept his claims to have been summonsed when he left for Australia or that he will be harmed if returned to Vietnam. It follows, that the Tribunal does not accept that the authorities have contacted the applicant’s parents or have enquired about his whereabouts since he left Vietnam.
Based on the above, whilst the Tribunal accepts that the applicant is a singer, it does not accept he has had any run-ins with the police or authorities related to his singing. Therefore, the Tribunal does not accept that if he returns to Vietnam, he faces a real chance of persecution from the authorities or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
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). 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.
Nora Lamont
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.
…

[2020] AATA 3436

20 July 2020

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Immigration

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