1932239 (Refugee) [2021] AATA 2018 (27 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932239
COUNTRY OF REFERENCE: Vietnam
MEMBER:James Lambie
DATE:27 April 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 27 April 2021 at 3:01pm
CATCHWORDS REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – Roman Catholic faith – participation in protests – illegal departure – victim of human trafficking – child applicant’s food allergies and unavailability of medication – decision under review affirmed
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 December 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be stateless, applied for the visas on 26 July 2016. The delegate refused to grant the visas on the basis that he was not satisfied that the applicants are refugees as defined by section 5J(1) of the Act. Nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there is a real risk the applicants will suffer significant harm.
The Tribunal affirmed the delegate’s decision, save that, in relation to the second-named applicant, it substituted a decision that the protection visa application is not valid and cannot be considered. That decision was set aside by the Federal Court. The matter is now before the Tribunal pursuant to an order of the Court.
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…
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.
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The case concerned two child applicants, identified as J and A, who sought protection visas. Their claims were based on fears of persecution in Vietnam due to their Roman Catholic faith, their mother's political activities, their parents' illegal departure from Vietnam, and specific concerns regarding A's severe food allergies and the unavailability of necessary medication in Vietnam. The applicants' father had previously been deported to Vietnam. The matter was before the Tribunal following a remittal from the Federal Circuit Court.
The primary legal issues before the Tribunal were whether the first applicant, J, met the criteria for a protection visa, and if not, whether he was entitled to complementary protection. Additionally, the Tribunal had to consider the validity of the second applicant's, A's, application and whether it could be assessed similarly to J's. The Tribunal was required to consider the applicants' claims in light of the Migration Act 1958, including the definitions of "refugee" and "well-founded fear of persecution," as well as Ministerial Direction No. 84 and the Protection Visa Processing Guidelines concerning minors.
The Tribunal reasoned that for a risk of harm to be considered a real risk of significant harm under section 36(2B)(c) of the Act, it must not be a risk faced by the population generally. The Tribunal applied the principles that a well-founded fear of persecution involves both subjective and objective elements, and that when assessing minors, greater weight should be given to objective factors, with consideration of the parents' circumstances. The Tribunal noted that while the applicants' mother gave evidence on their behalf, the children themselves provided only basic information due to their tender years. Ultimately, the Tribunal was not satisfied that either applicant was a person in respect of whom Australia had protection obligations.
The Tribunal affirmed the delegate's decision not to grant the applicants protection visas. Consequently, the applicants were found to not satisfy the criteria for a protection visa under section 36(2)(a) or (aa) of the Act, and therefore could not satisfy the criteria under section 36(2)(b) or (c).
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The written material before the Tribunal included:·written submissions lodged on behalf of the applicants;·birth certificates for A and J;·photographs depicting [Ms A] and the children at political demonstrations in Brisbane;·statements in the names of J and A;·baptismal certificates;·a letter from the principal of [a] Catholic Primary School, dated 27 July 2020;·a statement by [Ms E] dated 30 July 2020;·the applicants’ protection visa application lodged on 26 July 2016;·the delegate’s decision record of 12 December 2016;·the Tribunal decision of 5 May 2017 and material provided by the parties for the hearing of that matter; and·a post-hearing submission incorporating press reports, medical records, further photographs, a marriage certificate, promotional material in respect of political demonstrations, a letter of support from [Mr F], a statutory declaration from [Ms A] and a statement by the applicants’ father. This material is described in further detail below.CONSIDERATION OF CLAIMS AND EVIDENCE The first issue in this case is whether the first-named applicant meets the refugee criteria and, if not, whether he is entitled to complementary protection. The second issue is whether the application of the second-named applicant is valid and can be considered in similar terms to the application of the first-named applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The first-named applicant (“J”) and the second-named applicant (“A”) are children aged, respectively, [age range] years old and born in Australia to Vietnamese parents. The applicants’ parents arrived in Australia in March 2013 by boat. The parents and A applied for protection visas on 6 September 2013. Those applications were refused by the delegate on 14 December 2014. That decision was affirmed on 25 March 2015. The applicants applied for a temporary protection visa (Class XD, Subclass 785) on 26 July 2016. The application was refused by the delegate on 12 December 2016. The decision was affirmed (save for finding that A’s application was not valid) by the Tribunal on 5 May 2017. The Tribunal’s decision was set aside by the Federal Court [in] October 2019 and remitted to the Tribunal as presently constituted. The applicants’ father was deported to Vietnam [in] August 2017. The claims made by the applicants are as follows:·they are stateless and do not have the right to citizenship or the right to reside in any country, and have never lived in Vietnam;·they are of the Roman Catholic faith and have been baptised in that faith in Australia. Their parents are also practising Catholics, having been persecuted by the Vietnamese authorities because of their religious views: in particular during an incident at the Con Cuong Parish Church in 2012. Further, the family was specifically targeted by the police. They fear they will be prohibited from practising their religion;·their mother, having participated in a number of demonstrations against the policies and activities of the Vietnamese government, both in Vietnam and Australia, would be subject to arrest and persecution by that government if she returned to Vietnam;·their parents having left Vietnam illegally and travelled to Australia to seek asylum, the applicants fear they would be stigmatised and treated as traitors by the Vietnamese government, including the school authorities;·they fear they will be denied public services and essential rights such as an education;·they fear their parents will be arrested when they return and that they may be separated from them and orphaned, abandoned or imprisoned with them;·they would be subject to persecution wherever they lived in Vietnam;·A has severe allergies to ingredients prevalent in Vietnamese food, that medicines for the control of anaphylaxis are not available in Vietnam, and that therefore his life would be endangered by living in Vietnam; ·a technical error in the Federal Law Search function of the Commonwealth Courts Portal may have enabled J’s name, rather than his Court allocated pseudonym, to have been accessed by a public search, contrary to section 91X of the Act and, therefore, become known to the Vietnamese government or other parties, further exposing him and/or A to the risks described above; and·a post-hearing claim that their father’s criminal history and/or status as a victim of human trafficking may expose them to the risks described above.Country of reference.
Decision
Reasons for decision
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants protection visas.James LambieSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.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. Given that the applicants are minors, I have had regard to the Protection Visa Processing Guidelines on minors (‘the Minors Guidelines’) 3.137 and 3.138.4, recognising that a minor might not present their claims for protection with the same level of detail or precision as an adult, and that the best interests of the child should be a primary consideration. I have also had regard to the Minors Guidelines 3.143.2 and 3.143.3, noting that:A well-founded fear of persecution involves both subjective and objective elements that demonstrate that the applicant has a genuine fear of persecution… The balance between subjective fear and objective circumstances may be more difficult… To assess where minors are concerned… It may be assumed that a child under 16 will lack the maturity to express well-founded fear in the same way as an adult, thus requiring an officer to give more weight to objective factors.An officer may also have regard to the circumstances of the parents or other family members of the trial, including their situation in the child’s country of origin. The treatment of the child’s family, for example, can support a well-founded fear…Apart from the child’s statements at interview, an officer may consider other evidence if available, including information from family members; information from members of the child’s community; reports or other evidence from medical personnel, teachers, social workers, child psychologists; and others who have dealt with the child; documentary evidence of persons similarly situated to the child, or their group; physical evidence; [and] general country information.Hearing The applicants attended the hearing on 6 August 2020, represented by their solicitor. The hearing was assisted by an interpreter in the Vietnamese language. The applicants’ mother, [Ms A], attended to give evidence both on her own account and on behalf of the children. The Tribunal, at their solicitor’s request, also sought to elicit evidence from the applicants directly. While both applicants were able, with some prompting, to tell the Tribunal they understood they were giving a promise to provide truthful evidence, only the most basic information could be elicited thereafter (for example, the school they attended and their ages). This is not surprising given their tender years. The hearing proceeded on the basis that, in respect of all material matters, the relevant evidence would be given on their behalf by their mother. [Ms A] and the children were present throughout the hearing.
