1932239 (Refugee)
[2021] AATA 2018
•27 April 2021
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 affirmedLEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2Any 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 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.
Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
A family is capable of constituting a particular social group for the purposes of s.5J(1) of the Act. However, this is subject to s.5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has experienced, where the reason for the fear or persecution is not a reason mentioned in s.5J(1)(a); and
(b) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s.5J(1)(a) (race, religion, nationality, membership of a particular social group, political opinion) will not have a well-founded fear of being persecuted within the meaning of s.5J.
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
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.
The Tribunal also heard evidence from [Ms B] and [Mr D].
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.
The claim that the applicants are stateless was not pressed at the hearing or in submissions made on their behalf. Nevertheless, the statements of J and A and the coversheet to the submissions describe the applicants as stateless and, therefore, I treat the claim as being maintained.
The applicants’ parents were Vietnamese citizens being held in immigration detention in Australia at the time the applicants were born. Neither parent is an Australian citizen or permanent resident.
Article 14 of the Law on Vietnamese Nationality provides that, inter alia, a person is determined to have Vietnamese nationality on the grounds of birth, as [relevantly] prescribed in article 15. Article 15 provides that a child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese nationality.[1]
[1] Ministry of Justice (Socialist Republic of Vietnam), Law on Vietnamese Nationality pursuant to the 1992 Constitution of Vietnam under Resolution No. 51-2001-QH10, 1 July 2009.
The decree on Civic Status Registration of the Government of Vietnam, Article 17 (Competence in Birth Registration) provides that: “birth registration shall be carried out at the People’s committee of the commune where the mother has her permanent residence certificate or where the child is born.” The time limit for birth registration is, usually, within 30 days but provision is made under Articles 59 to 62 for the overdue registration of births. This requires an explanation for the overdue registration together with the birth certificate issued by the medical establishment where the child was born, the parents’ marriage certificate if it exists, the household register of the mother, and the identity card of the person making the birth declaration. A Vietnamese birth certificate will then issue within seven days. Country information is that returnees who are failed asylum seekers are able to obtain household registration if their previous registration has lapsed.[2]
[2] Department of Foreign Affairs and Trade (DFAT), RRT Country Information Request VNM39900, 5 March 2012.
In view of the above, I am satisfied that Vietnam is the country of nationality and also the receiving country of the applicants for the purposes of ss. 5(1) and 62(2)(aa) of the Act. I am further satisfied that the applicants do not have a right to enter and reside in any other country and that, therefore, they are not excluded from Australia’s protection obligations under s. 36(3).
Validity of A’s application
The Tribunal as previously constituted found that A’s application was barred by s. 48A of the Act because he had previously made an application for a protection visa while in the migration zone which had been refused.
The parents lodged their protection visa application on 6 September 2013. A was born on 23 November 2013 and lodged his protection visa application on 25 September 2014. He was listed as a member of the family unit who was not an applicant and was not making a claim in the delegate’s decision of 14 December 2014. The delegate found that A, not being an applicant, had no claims that could be assessed. Having been born in Australia after 13 August 2012 to parents who were irregular maritime arrivals, he was barred by s.46A(1) from making an application.
In these circumstances, I am of the view that A, not previously having made a valid application, cannot be taken to have had a previous application refused. The decision under review treated this application as valid and I see no reason to disturb that aspect of the decision.
Claims relating to practising religion
Having regard to the evidence given by [Ms A], the baptismal certificates and the letter from the school, I am satisfied that the applicants and their parents belong to the Roman Catholic Church.
The applicants, in their written statements claim that they fear that they will be prohibited from practising their religion and say that, where their parents are from, Catholic people are frequently targeted for their worship.
A ‘statement of facts’ was provided to the Tribunal by [Ms E], who escaped Vietnam to Australia by boat at the age of [age] in 1981 as an unaccompanied minor and has since been extensively recognised for her leadership and volunteer work in the Vietnamese and wider community. Her father had been an officer in the Army of the Republic of South Vietnam and was interred for 12 years by the new regime after the fall of Saigon in 1975. Among other things (referred to below) she says:
we did not have the freedom to practice our Catholic religion and our family home was constantly being guarded, especially before church time each day. On many occasions, we were stopped from leaving our home to go to church. We were told we should not follow our Catholic religion; instead we should only worship Uncle Ho (Ho Chi Minh).
This account describes conditions prevailing in the period 1975 to 1981. I would also note, without in any way questioning the veracity of her account, that her family had been specifically identified as one of special interest to the regime because of her father’s role in the war. Her experience may not be typical of claimants without a similar political profile, from the North of the country, and without the direct experience of the aftermath of the war.
The Tribunal heard from [Ms A], whose evidence is the most relevant to this claim. She told the Tribunal that, from about the age of [age], she attended Sunday mass at the [parish] church and participated in Bible studies on the weekends. She said she took her religious practice seriously, to the extent that after finishing school at [age] she looked into joining a convent. She did not pursue this vocation.
She was asked whether she had any first-hand experience of discrimination or persecution by reason of her membership of the church. She said that she could not point to any educational discrimination, although she believed that she would not have been allowed to join the Communist Party or the Youth League. She did not attempt to join either of these organisations. She could not comment as to whether her membership of the church precluded her from pursuing tertiary studies because she did not pass the entrance exams. When asked whether she had any first-hand experience of anti-Catholic discrimination, she replied in the negative and said that she depends on other people’s accounts of what may happen to Catholics when they return to Vietnam.
[Ms A] described to the Tribunal that the decision she and her husband made to leave Vietnam was precipitated by a protest at Con Cuong Parish Church on 1 July 2012 which was violently suppressed and at which, she claims, her husband was arrested and beaten by police. Details were provided to the Refugee Review Tribunal in 2015 by her and her husband. I questioned her on the details of this claim. She did not claim to have been present at the event but previously claimed to have dressed her husband’s wounds. At each hearing of this matter and the antecedent proceedings, she has been questioned as to why her husband’s claimed extensive injuries and subsequent violent questioning did not interfere with their wedding three days later. She said she did not notice any injuries at the wedding. She made no mention of being targeted by the police following the wedding, either in respect of herself, her husband, or their respective families.
A question arose in the course of the hearing as to the date of the wedding. It was noted that A’s birth certificate, as submitted to the Tribunal, gives the date of his parents’ marriage as [March] 2012. J’s Queensland birth certificate does not record any marriage details. [Ms A] advised that the marriage date on A’s birth certificate reflects a mistake made by staff at the detention centre. With the post hearing submissions, the parties provided a revised birth certificate for A (issued [September] 2020) indicating a marriage date of [July] 2012. Also provided were copies of the relevant register entry and marriage certificate from the [parish] church indicating that the marriage was celebrated [in] July 2012. The certificate itself is signed and dated by the parish priest [in] August 2020. The official state marriage certificate does not record the date of the marriage, only that it was registered [in] February 2013. This was immediately prior to the parents’ departure from Vietnam. On balance, while I do not consider the matter free from doubt, I accept that the marriage was celebrated [in] July 2012. The date of the marriage and [Ms A]’s failure to recall any details of her husband’s claimed mistreatment at the hands of the authorities, or of any injuries, are very difficult to reconcile with the claims made in respect of the Con Cuong incident. I am not satisfied that the incident occurred as claimed, or at all. Given that she has disclaimed any other first-hand instance of anti-Catholic persecution or discrimination, I am not satisfied that she or her family were specifically targeted by the police in respect of their religion, or for any other reason.
On the evidence, therefore, I am satisfied that [Ms A] has no direct experience of anti-Catholic discrimination. I must therefore have regard to the other material presented by the parties and to country information in respect of this claim. For the reasons given in paragraph 37, I cannot accord significant weight to [Ms E]’s evidence of her personal experience to the claims made by the applicants.
In their written submissions, the applicants cite a United Kingdom Home Office country information report on Vietnam (March 2018) and a United States Department of State 2019 Report on International Religious Freedom: Vietnam. The UK report, noting that “severe religious freedom violations continued, especially against ethnic minority communities in rural areas of some provinces,” goes on to report that:
Religious organisations continue to report threats of eviction from or demolition of their religious property; in some cases, the government follows through on its threat. Not all seizures or destruction of religious property are rooted in religious freedom, but in many cases the acts ultimately disrupt or interfere with religious practices.
The US Report cites and summarises a number of sources as instances of the persecution of Catholics and other Christians, including an incident in the applicants’ parents’ former home province of Nghe An.
The applicants’ submission is that the existence of a law which is below international standards and which in practice does not protect those with religious beliefs from government persecution is insufficient to support the assertion that the applicants do not have a well-founded fear of persecution because of their religious views. It is further submitted that recent incidents of violence and government persecution against Catholics and other Christians in Vietnam challenge the assertion that the mere existence of laws, which in theory promote religious freedom, are sufficient to prevent persecution of Catholics in Vietnam. They submit that current country information evidence is widespread and ongoing state sanctioned persecution of Catholics and other Christians and that the pattern of encouraging Catholics and other Christians to recant their faith, either by force or coercion, evidences that lack of genuine religious freedom in Vietnam.
In addition to citing individual instances of possible or likely persecution, the US Report observes:
most representatives of religious groups continue to report that adherence to a registered religious group generally did not seriously disadvantage individuals in non-governmental civil, economic, and secular life, but that adherence to an unregistered group was more disadvantageous. Practitioners of various registered religious groups served in local and provincial government positions and were represented in the National Assembly… High-ranking government officials sent greetings and visited churches during Christmas and Easter…[3]
[3] US Report, p. 19
The DFAT report “assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from the authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.”[4]
[4] DFAT report, 3.37
These matters were put to [Ms A], with the suggestion that the conclusions corresponded with her own experience. She said that she believed the Church had reached out to the government, and that could only be a good thing. I note that the church to which she belonged is not claimed to be a house church, nor was there any claim that it engaged in political activism. In view of [Ms A]’s evidence that she had not experienced discrimination on the basis of her Catholic faith, and the relevant country information, I am not satisfied that A and J have a well-founded fear of persecution on the ground claimed, or that they would be prohibited from practising their religion.
Claims relating to the mother’s political activities
It was submitted on behalf of the applicants that their mother’s activist activities in Australia would result in her being persecuted upon her return to Vietnam. Photographs were submitted to the Tribunal depicting [Ms A] with the applicants at events in Brisbane at which she is holding or in proximity to placards with political slogans.
It was submitted that the persecution which is likely to be experienced by the applicants’ mother would result in the applicants experiencing serious harm as they would be imputed with their mothers’ anti-government political opinion. It was submitted that, if their mother was imprisoned for her activism, the applicants would be denied the support of their mother which would result in significant economic hardship that would threaten their capacity to subsist. Their father, it was submitted, has been denied any livelihood since returning to Vietnam and would be unable to alleviate the applicants’ economic hardship. It was further submitted that the applicants themselves will be denied access to basic services, because their mother’s anti-government political opinion would be imputed to them.
[Ms E]’s ‘statement of facts’ describes how, on her return to Vietnam in 2012, she was detained and interviewed by Vietnamese police in relation to, inter alia, her political activities in Australia. She claimed that the police held a substantial dossier of her public and private information, including every news release associated with her work. She says that, “despite the fact that I am now an Australian citizen and although entered Vietnam on my Australian passport, I can still be treated as a Vietnamese citizen and will not be protected by the Australian government…” As with her evidence at paragraph 36, I give her statement some weight as evidence of the treatment that the Vietnamese authorities may give to someone in her position.
In relation to the applicant’s mother specifically, she states:
[Ms A] is very active in her participation in protests against the Vietnamese government while living in Australia; and has participated in many activities such as: rally to collect signatures to free Vietnamese prisoners of conscience and to support victims of state sanctioned injustice in Vietnam at [a] shopping centre and attend VOICE functions;
[Ms A] is genuinely caring and passionate about human rights activities…
[Ms A] will most likely be sentenced or imprisonment for her active support of the activities organised by different associations, organisations, groups, lobby parties and connection with different stakeholders in the Vietnamese community in Australia, with the priority to abolishing the dictatorial regime blocking the advancement of the Vietnamese people and to expose the injustice of the Vietnamese government …
[Ms A] and her children will face many adversities and will most likely be excluded from many things which will make it extremely hard for their lives. They will also face community exclusion as not too many people would like to associate with [Ms A]’s family as it may be a danger to be seen as associate [sic].
This assessment , in my view, is coloured by Ms Do’s personal experience, which includes a political profile much higher than [Ms A]’s and derives from a historical background of considerable interest to the security organs of the Vietnamese regime.
The post-hearing submission included a letter of support from [Mr F], dated 16 August 2020. [Mr F], who is [an official] of [Organisation 1], certifies that [Ms A] participated in the following events:
·[Details deleted].
[Ms A]’s political activity, on her own account of it, commenced in or about 2018. Evidence was presented of her participation at rallies and vigils, most against the activities of the Chinese government as they affect Vietnam, Hong Kong and Australia, but also against the Vietnamese cyber security law and, she claims, in support of prisoners of conscience. There are some photographs depicting her with the flag of the former Republic of Vietnam and in the proximity of placards bearing the slogan “down with communist Vietnam.” It was put to her that all of her political activity has been conducted since arriving in Australia, was of recent inception and had been undertaken for the purpose of strengthening the applicants’ claims. Her evidence was that she has become politically active as a matter of conscience. When asked to describe her political activities, her answers were confined to descriptions of the physical events and she volunteered no information about the issues in respect of which the events had been convened. She provided short descriptions of the issues when pressed.
It was suggested to [Ms A] that the majority of the photographs submitted to the hearing concerned issues (specifically those concerning China) that enjoy popular support in Vietnam, and in respect of which country information is that, save for some specific protests that turned violent, the Vietnamese government has largely tolerated. [Ms A]’s evidence was that she wished to express solidarity with the Vietnamese people in respect of these issues.
A statutory declaration from [Ms A] was included with the post-hearing submission. In that statutory declaration, she says:
Since 2018, I have engaged in political activities which oppose the government of Vietnam, Communism and which seek to bring awareness of the human rights abuses being conducted by the Government of Vietnam. I was not able to express these political opinions while I was in Vietnam because of the lack of freedom to express his opinions in Vietnam. When I lived in [location] it [was] difficult for me to connect with members of the Vietnamese community. At that time, my children were very young which also made it difficult for me to attend political events. After I moved to [another location], I was able to connect with a larger Vietnamese community. My children were also older which made it easier for me to engage in political activities.
On or around [March] 2018, I participated in a public protest against the Vietnamese Communist government for its imprisonment of members of the brotherhood for democracy.
In June 2018, I participated in a public protest [against] the Vietnamese communist government for allowing Chinese expansion into Vietnam special economic zones.
On or around [October] 2018, I participated in a public candlelight prayer vigil, in [another location], which advocated for human rights, personal freedoms, democracy and freedom of speech in Vietnam. I live streamed this political event on social media using my mobile phone.
On or around 6 October 2019, I participated in a public protest, in the Brisbane CBD, against the Vietnamese communist government for allowing Chinese expansion into Vietnam’s special economic zones.
In 2020, I have continued my political activities by writing and sharing articles through social media which oppose the communist government of Vietnam’s unjust treatment of the people of Vietnam.
Accompanying this statutory declaration were a selection of photographs and screenshots of videos depicting some political events at which [Ms A] and the applicants were present. The events were those of [June], [July], [September] and [October] 2018, and [October] 2019. Translated copies of the were also two advertisements issued by [Organisation 1] for the candlelight vigil of [October] 2018 and the demonstration of [October] 2019 were also included.
At paragraph 9 of her statutory declaration [Ms A] states: “In 2020, I have continued my political activities by writing and sharing articles through social media which oppose the communist government of Vietnam’s unjust treatment of the people of Vietnam.” There was no material provided with the post-hearing submission dated later than [October] 2019 to support or evidence this claim, and none answering the description of ‘writing and sharing articles.’ The Tribunal raised this with the applicants’ representatives in a letter pursuant to s. 424A. The response attached screenshots of social media items claimed to have been posted by [Ms A] during 2020 and 2021. The items, in Vietnamese, are accompanied by English translations.
I consider it relevant that all of the items included post-date the hearing, and that there is no evidence of activity between [October] 2019 and [August] 2020. The items she has posted are, in each case, a simple re-posting of items composed by others. In each case but one, they are not accompanied by any commentary of her own. The exception is a single line comment, “[deleted]” to a reposting of a YouTube video [in] August 2020. One item, dated [October] 2020, at first glance appears to contain commentary from her but on closer inspection merely copies and pastes someone else’s press release (which is reposted below her purported comment).
The conclusion I have reached on the evidence presented is that [Ms A]’s claimed political activity, which commenced only after the rejection of this claim by the previous Tribunal (which made a positive finding, on [Ms A]’s own evidence, that she held no political views critical of the Vietnamese regime), was passive and temporary in nature. She maintained the activity throughout 2018, which is well self-documented. At the hearing, her descriptions of her political beliefs were vague and showed little insight into the issues to which she claimed to be committed.
On the evidence, [Ms A] has not satisfied the Tribunal that she has engaged in her claimed political activity otherwise than for the purpose of strengthening the claims.
Included with the post-hearing submission was a copy of an article from France24 (credited to Agence France-Presse) dated 7 March 2019 and bearing the headline “Vietnam jails 15 over anti-China protests.” The context of this story is that the protests in question, in Binh Tuan province, turned violent and led to the ransacking of a police station and destruction of security vehicles. The post-hearing submission includes a copy of an academic article, “Domestic Protest and Foreign Policy: An Examination of Anti-China Protests in Vietnam and Vietnamese Policy Towards China Regarding the South China Sea”[5]. This article notes that numerous anti-China protests throughout Vietnam were permitted to continue, at least for some time, without opposition from the authorities. It was only with the outbreak of large-scale rioting and violence that the protests were suppressed. The article also observes that “ … overseas protests [whether by Vietnamese nationals living abroad or other members of the Vietnamese diaspora] have less potential to threaten the Vietnamese regime than domestic protests that could quickly accelerate and evolve into demonstrations against Vietnam’s political system.” Neither article supports the argument that the involvement of [Ms A] and/or the applicants in anti-China protests in Australia necessarily expose them to the risk of persecution in Vietnam.
[5] Journal of Asian Security and International Affairs 6(1) 1-29, 2019
The post-hearing submission argues that “the Tribunal only approached the evidence of [Ms A]’s political activities in relation to those activities which oppose the expansion of China into Vietnam’s special economic zone.” The Tribunal’s questions to [Ms A] were directed towards eliciting an explanation as to why these activities, conducted in Australia, might expose her or the applicants to the risk of persecution, when the views articulated by these activities appear to have popular support in Vietnam. In view of the country information that any official suppression of the public articulation of these views in Vietnam was directed at those identified with leading or participating in localised violent disorder, I cannot be satisfied that her peaceful expression of similar views in Australia gives rise to a well-founded fear of persecution by reason of imputed political opinion on the part of the applicants. For the same reasons, I also cannot be satisfied that there is well-founded fear of persecution of the mother by reason of her imputed political opinion that would result in persecution of, or the risk of serious harm to, the applicants.
The post-hearing submission also argues that:
The Tribunal stated, during the hearing, that the applicants were required to satisfy it that [Ms A]’s political activity was not conducted to strengthen her protection claims. We submit that the applicant’s fear of persecution on the basis [of] [Ms A]’s political activities and their involvement in those activities does not require consideration of whether those activities were conducted to strengthen [Ms A]’s protection claims. Firstly, the Applicants’ claims for protection are made independently from [Ms A]. Secondly, [Ms A] participated in political activities against the government of Vietnam because she genuinely holds a political opinion which opposes the Vietnamese government. Thirdly, s5J(6) of the Act is not a relevant consideration in this matter.
We submit that consideration of [Ms A]’s protection claims is an irrelevant consideration as she is not an applicant in the decision under review. Furthermore, [Ms A] is precluded by s48A of the Act from making an application for a protection visa …
We submit that s5J(6) of the Act does not apply to third-party minors whose sur place claims for protection arise through the actions of a parent [citing s5J(6) and SZREM & Anor v Minister for Immigration & Anor [2014] FCCA 129 at [81] and [82]]…
We submit that the reasoning in SZREM precludes the Tribunal from disregarding [Ms A]’s political activities as they are an integer in the applicant’s claim of a well-founded fear of persecution by reason of their imputed political opinion. Furthermore, we submit that [Ms A]’s political activities form a basis for the Applicants’ sur place claim consistent with the Tribunal’s Guide to Refugee Law in Australia at [3-16] …
We submit that the Applicants’ sur place claims for protection are based upon their being imputed with their mother’s anti-Communist government of Vietnam and pro-human rights political opinions which arise from [Ms A]’s political activities. Furthermore, we submit that [Ms A]’s engaging in these activities is sufficient for the applicants to be imputed with her political opinion, irrespective of her motives for engaging in these activities or the relevance of these activities to [Ms A]’s personal claims for protection. Therefore, we submit that the applicants have a well-founded fear of persecution and face the real chance of experiencing serious harm as articulated in their previous submission…
In my view, the submission is misconceived. In CAH17 v Minister for Immigration and Border Protection [2019] FCA 1129 at [19], Flick J held “the claims made by the son necessarily had to be resolved by reference to the evidence given by the mother on his “behalf”, together with such other evidence as there was available. The adverse finding made by the Tribunal as to the “credibility” of the mother’s evidence could not be divorced from such evidence as she gave on her own behalf and that given on behalf of her son.”
I have taken into account the evidence that shows the applicants present at political rallies but, given their very young ages and the extremely limited amount they were able to tell the Tribunal, consider that their presence could only be at the behest of their mother. In light of the approach taken by the Federal Court in CAH17, I am not prepared to accept a submission that the Tribunal is bound to find that the applicants have a better claim to an imputed political opinion than that of the person who expressed the opinion.
For the reasons in paragraph 60, I am not satisfied that [Ms A]’s claims of political activism are motivated for reasons other than strengthening the visa application. I do not consider that her claimed political activity is other than contrived. Having regard to that finding, and to the DFAT Country Information Report at 5.29, that returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection, I do not consider the political activities in which she has engaged would be of any interest to the Vietnamese authorities. Therefore, I am not satisfied that there is a real chance of harm to her or the applicants on the grounds claimed. Accordingly, I am not satisfied that there is any evidence for a well-founded fear of persecution on the part of A and J on the grounds of imputed political opinion.
Claims relating to the mother’s illegal departure from Vietnam and status as a failed asylum seeker
It was submitted on behalf of the applicants that their imputed anti-Vietnam and anti-government political opinion arises from their parents’ illegal departure from Vietnam to seek asylum and that, further, their parents’ illegal departure for the purposes of seeking asylum increases that profile. In particular, it was submitted that their mother was likely to be detained on her return to Vietnam and that, whether or not they were detained with her, they face the risk of coming to serious harm.
It was further submitted that the applicants have a well-founded fear of persecution due to their membership in the particular social group of children in Vietnam whose parents have been returned to Vietnam after leaving Vietnam illegally. They claim that their mother would be a person who is guilty of the offence of illegally departing Vietnam, the penalty for which is between AU$187 and AU$310. This, it is submitted would place a significant financial burden on the applicants’ parents’ ability to provide for the applicants’ basic needs, amounting to the serious harm of significant economic hardship that threatens the person’s capacity to subsist.
In support of this claim, the applicants’ submission quotes from the DFAT Country Information Report, which notes at 5.32:
International human rights observers have reported several recent cases in which failed asylum seekers have been detained upon return to Vietnam from neighbouring states. Human rights watch reported that in April 2017, a Montagnard who had sought protection in Cambodia was detained for 12 days and interrogated upon return to Vietnam. The US Department of State reported in 2018 that ethnic and religious minorities, including Hmong and Montagnards, who had fled to Cambodia or Thailand, have claimed that Vietnamese authorities had initially pressured them to return by threatening their remaining family in Vietnam, and then abused, detained, or questioned them upon their return.
The Report makes no mention of other ethnic groups. The applicants have asserted no connection to the ethnic groups mentioned in this paragraph.
[Ms A] and the applicants had no direct personal evidence to provide in relation to this ground, [Ms A] acknowledging that her claims were based on what she had heard from others. The Country Information Report, cited in support of this claim, notes at 5.29 to 5.31:
DFAT is unaware of any cases where [the Penal Code] provisions have been used against failed asylum seekers return from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection …
In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. According to sources in Vietnam, any returnees with travel document concerns a question that interview rooms at airports. DFAT understands that would-be migrants who have employed the services of people smugglers typically only face an administrative fine, including in cases of multiple illegal departures.
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between 1 to 2 hours, and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
At 5.35, the Country Information Report continues:
DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves. Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam. DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in organising people smuggling operations.
The applicants, in relation to this claim, also referred to the statement of [Ms E] whose evidence, for the reasons given in paragraphs 37 and 51 above, I do not find referable to the circumstances of the applicants.
The applicants also rely upon the evidence of [Mr D] in relation to the treatment of failed asylum seekers. His evidence is that the treatment of returned asylum-seekers is other than the assessments in the Country Information Report extracted at paragraphs 70 and 72 above. It relies upon the telephone interview with Ms Lua. While I do not doubt the sincerity of his evidence, it relies substantially on third-party information which has not been sworn and the maker of which is not available to have her claims tested.
Although not referred to in the submissions, I have considered the additional material submitted to the Tribunal as previously constituted. In particular, I have considered an SBS Australia online article titled, Women flee Vietnam for second time following turn-back from Australia, dated 15 February 2017. This article concerns, at least in part, the material traversed in the evidence of [Mr D]. It claims that the husband of one of the sources has been imprisoned as the organiser of an intercepted irregular maritime voyage. If this is the case, this is consistent with the Country Information Report quoted at paragraph 73 above. There is no confirmation, and no subsequent information has been submitted to the effect, that any proceedings were brought against those involved in the voyage otherwise than as organisers.
In the circumstances, I give more credit to the Country Information Report than to the material submitted by [Mr D] or the news articles. I am not satisfied that [Ms A] will be detained and fined as a failed asylum seeker on her return to Vietnam. I am not satisfied that the applicants wilI be stigmatised and treated as traitors of the Vietnamese government and school authorities because their parents are failed asylum seekers, nor that they will be denied public services and essential rights such as an education, nor that they will be orphaned, abandoned or imprisoned with their mother. I am also not satisfied that their mother will be subjected to any treatment which would deprive them of their basic needs, or expose them to significant economic hardship, or threaten their capacity to subsist. Therefore. am not satisfied that the claimed well-founded fear exists.
A's food allergies and the lack of treatment options in Vietnam
Medical records have been presented to the Tribunal showing that A is allergic to eggs, soy and all nuts. He is at risk of anaphylaxis if he ingests any of these foods. This issue was not mentioned in the initial submission and was raised by [Ms A] for the first time towards the close of the hearing. [Ms A] told the tribunal that these foods are widely used in Vietnamese cuisine, that the condition is not well known or understood in Vietnam, and that epi-pens are unavailable in Vietnam. Extraneous evidence of these matters was not presented at the hearing but was detailed in the post-hearing submission.
I accept that eggs, soy and nuts (including nut derivatives, such as peanut oil) are widely used in Vietnamese cuisine.
It was submitted that “any limiting of [A’s] access to an epi-pen amounts to a threat to his life (s5J(5)(a) of the Act). Travel advice for Vietnam evidences the difficulties [A] is likely to experience in acquiring the medication he requires [to] manage his risk of anaphylaxis.” A number of travel advisory websites and blogs are cited to support the proposition that epi-pens are difficult to find in Vietnam and that unsuitable alternative medication may be offered.
The travel advisory websites and blogs cited are of limited value. One of these, Pillintrip.com, purports to provide a guide to the availability of pharmaceutical products around the world, but the provenance of its information is not apparent, and its navigability is primitive. The other is a blogpost from a person identified only as Celeste M from Canada on the TripAdvisor website from 2018. The topic has been closed by the website due to inactivity.
On receipt of this submission, the Tribunal conducted a very basic internet search, which located an advertisement for a pharmacy in Ho Chi Minh City to the effect that epi-pens were available for delivery throughout Vietnam. This was put to the applicants’ representatives in a letter pursuant to s. 424A in the following terms:
“It was submitted by [Ms A] at the hearing on 6 August 2020, and particularised in the post-hearing submission dated 20 August 2020, that EpiPen medication is not available in Vietnam, relevant to claims made by or on behalf of [A]. Attached is a copy of an advertisement, “Now you can purchase EpiPen from Saigon Pharmacy”, dated 16 September 2020. This information is relevant to the review because it may suggest the claims made at the hearing and in the post-hearing submission are incorrect.”
The representatives’ response to this letter attached screenshots of two text message exchanges between the representatives and Saigon Pharmacy. The response reads:
We now refer to attachment ‘B’ (enclosed) containing a conversation between us and Saigon Pharmacy dated 17 March 2021 in which they confirmed the complete lack of availability of the EpiPen, delays in shipping and price per unit:
We don’t have EpiPen in stock right now, but can order it from Australia with price 4,6mil per box of one pen. It used to take 1 week to arrive Saigon before. But at the moment, I’m not sure when I can receive more stop, due to limited flight problems. So please advise if you can wait even for one month [sic].
We also refer to attachment ‘C’ (enclosed) containing a conversation between us and Saigon pharmacy dated 30 March 2021 in which they confirmed that they do not stock the EpiPen and that its price has also increased:
I don’t stock the medicine, and only place the order to oversea distributor when the customer confirm the purchase. Btw, the supplier has just increased the price 10%, so now it cost 5mil [sic].
We submit that there is no readily available supply of EpiPen units in Vietnam as evidenced by information provided by Vietnam’s only apparent local supplier, Saigon Pharmacy. We note that according to Saigon pharmacy’s information, should [the second-named applicant] be returned to Vietnam and his personal supply of EpiPen units were subsequently exhausted, he would have no access to an epi-pen for up to a one month period. We emphasise that any period of time spent without access to an epi-pen exposes [the second-named applicant] to the risk of death in the event of anaphylaxis. Furthermore, we note that according to health advice [the second-named applicant] should possess to epi-pens to adequately safeguard against anaphylaxis should he ingest any food or substance containing nuts, eggs or soy. According to Saigon Pharmacy the cost for two EpiPen units would be 10 mil VND which equates to approximately AU$566. We submit that this sum would represent a substantial and unaffordable expense for [the second-named applicant]’s mother [Ms A], whose earning capacity, should she be returned Vietnam, is likely to be limited due to her status as a single mother of two young children, and her lack of qualifications and work experience. We further note that due to the EpiPen shelf life of 1 to 2 years, the significant expense of replacing EpiPen units would be incurred by [Ms A] on an ongoing basis (with greater frequency of doses were administered and subsequently replaced).
We submit that the absence of a readily available supply of EpiPen units in Vietnam, and their substantial cost (if they were available close brackets, amounts to a denial of access to medication that is fundamental to [A]’s continued safety. We submit that this denial of access creates a real chance of [A] experiencing a threat to his life in the event of anaphylaxis.
The applicants’ position therefore has shifted from that that the medicine is unknown in Vietnam to it having limited availability, and that only in response to the Tribunal’s own limited inquiries. No inquiries have been undertaken by the applicants as to alternative sources of supply or the feasibility of private import. Accordingly, I am not satisfied that efficacious anaphylaxis medicines are ‘unknown’ or unavailable in Vietnam to the various extents claimed by the applicants, or at all.
The applicants’ representatives further claim that [A] is a member of the particular social group, Children with Severe Food Allergies in Vietnam, and that he has a well-founded fear of persecution, viz, ‘that being denied access to epi-pens as a means to treat any future anaphylaxis he experiences is a threat to his life’. I recognise that having a particular disease or illness has been accepted as constituting a particular social group in certain circumstances[6], but am required to consider not only the attributes of the disease and its sufferers, but also the way in which the class of persons with the illness or disease are regarded within a particular society. Even were I satisfied that there are no effective available medications, I am not satisfied that there is evidence of a history of continuous persecution, discrimination or marshalling of social attitudes over time[7] against individuals with food allergies in Vietnam.
Technical error leading to disclosure of J’s name
[6] See, for example Denissenko v MIEA (Federal Court of Australia, Foster J, 29 May 1996).
[7] Per the test in Lo v MIEA (1995) 61 FCR 221 at 231.
This ground was not expressly pressed in submissions or at the hearing, other than as a basis for Ministerial intervention. However, a letter from the Federal Court of Australia, Principal Registry, dated [June] 2020, was included with the submissions. The letter advises that, on 20 March 2020, the Court was notified that the names of certain persons, rather than their Court-assigned pseudonyms, could be assessed in certain circumstances through Federal Law Search on the Commonwealth Courts Portal. The letter advises that the courts are unable to determine if any, or what, access may have been gained. I am prepared to accept that there is a statistical possibility that J’s name could have been accessed by a person or persons in Vietnam with interest in the fact of the proceedings on this, or another earlier, occasion. However, in view of the evidence referred to in paragraphs 49 and 53 above, in which [Ms A] has published photographs of the applicants, or allowed others to photograph and/or record them, in attendance at her sur place political activities, I do not consider that the technical error gives rise to any appreciable additional risk.
Applicants’ father’s criminal history
This issue was not raised in the claims originally raised by the applicants for this application but arose in the course of the hearing following a reference to it by [Ms B]. At the hearing, [Ms A] and the applicants’ representatives submitted that it was not a relevant matter. I raised the possibility that it might provide an alternative explanation as to why the parents left Vietnam but, with no material before me, suggested that the parties may wish to make a post-hearing submission.
In their post-hearing submission, the representatives submitted that the father’s criminal history amounts to an irrelevant consideration. Specifically, it was submitted that consideration of whether the father’s criminal history influenced his and [Ms A]’s decision to flee Vietnam is not a relevant consideration because it is beyond the subject matter, scope and purpose of the Act as it relates to the applicants’ claims for protection which are made independently of the parents. That is not a matter that I consider necessary to decide, having come to the conclusion at paragraph 48 above as to the claims concerning practice of religion, which also underlie [Ms A]’s claims as to why she left Vietnam. For the avoidance of doubt, any evidence of the father’s criminal history did not affect my assessment of those claims.
The representatives submitted, in the alternative, that additional claims on behalf of the applicant may arise by reason of the father’s criminal history and/or his status as a person who has been the victim of human trafficking. In aid of this submission, they cite a 2018 Reuters article, which concerns some men who fled Vietnam for the United States in the aftermath of the war and were deported back to Vietnam after being convicted of criminal offences. Although they complain of being viewed with suspicion by the authorities and having trouble finding work, their principal complaint relates to their deportation after lengthy periods of residence in the United States. No claim is raised in the article that, as persons with overseas criminal convictions, they have been subjected to persecution for a Convention reason. A statement by the father was included with the post-hearing submission, providing some brief details of his history between 2008 and 2012. He makes no complaint of his treatment in Vietnam and maintains that his reasons for leaving Vietnam in 2013 related to the Con Cuong incident referred to above. As to his status as a failed asylum seeker, there is nothing in the material to satisfy me that the discussion at paragraphs 68 to 77 does not equally apply. On the material presented on behalf of the applicants, I am not satisfied that any claimed well-founded fear on these grounds exists.
Cumulative profile
The Refugee Law Guidelines, at 3-11, state:
[I]t would be wrong to simply consider the individual circumstances put forward by an applicant, and accepted by the decision maker, as being grounds for a well-founded fear of persecution in the future, without considering those circumstances cumulatively. This is particularly so where an applicant claims that the aggregation of past incidents suggests that he or she was targeted for harm. In a complex case where an applicant faces multi-faceted risks which may interact and interrelate, a cumulative assessment requires an active intellectual engagement with the issues when considered cumulatively.
Thus, it is claimed on behalf of the applicants that, by reason of being imputed with their parents’ political opinion arising from:
·the parents’ illegal departure from Vietnam to seek asylum; and
·the mothers’ anti-Vietnamese government activities;
and their own:
·practice of the Catholic religion; and
·membership in the particular social group of children in Vietnam whose parents have been returned to Vietnam after leaving Vietnam illegally
there is a real chance that the applicants will experience the serious harms of denial of access to basic services, denial of the capacity to earn any livelihood, significant economic hardship, and the harms similar to those currently being experience by Catholics in Vietnam, which may threaten their capacity to subsist.
As requested in the post-hearing submission, I have added the claims in relation to A’s food allergies and the father’s criminal history to the cumulative profile.
I have considered each of the applicants’ claims in detail above. I have also considered, for the purposes of the cumulation claim, the extent to which they might be interrelated and whether the totality of their circumstances may give rise to a well-founded fear of harm or persecution. While the claims have been presented in a way that suggests a degree of interrelation (e.g., that of an imputed political position arising from their mothers’ actions, and of religious practice arising from their family background), I am of the view that first I must be satisfied of the existence of each of the heads of claim: MZYPA v MIAC [2012] FMCA 43 at [58].
The applicants not having satisfied me that they hold well-founded fears arising from their claimed imputed political opinions (see paragraphs 67 and 77 above), the practice of their religion (paragraph 48), their membership of the claimed social group of children of failed asylum seekers (paragraph 77), A’s food allergies (paragraph 85), or their father’s criminal history (paragraph 89), I am not satisfied that any well-founded fear arises from the cumulation of the applicants’ claims.
Conclusion: refugee criterion
In view of the findings above, the Tribunal finds there is not a real chance that the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and, therefore, they are not refugees within the meaning of s.5H
Complementary protection
I have considered the applicants’ circumstances both individually and cumulatively, and the country information, as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Vietnam there is a real risk that they will suffer significant harm. On the basis of all of the evidence and submissions provided on behalf of the applicants, discussed at length above and for the same reasons, I am not satisfied that there substantial grounds for that belief.
Ministerial intervention
It was submitted on behalf of the applicants that the unauthorised release of information through the Commonwealth Courts Portal makes this an appropriate case for the Tribunal to make a recommendation to the Department to refer this matter for Ministerial intervention pursuant to s.417 of the Act. For the reasons given in paragraph 86 above, I do not accept that submission.
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 Lambie
Senior 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.
…
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.
…
0
4
0