2003091 (Refugee)

[2020] AATA 3777

2003091 (Refugee) [2020] AATA 3777 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003091

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:James Lambie

DATE:7 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 September 2020 at 10:35am

CATCHWORDS
REFUGEE – protection visa – Vietnam – coercion by criminal gang – kidnapped by the same gang – late claim not raised earlier – state protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 February 2020 to refuse to grant the applicant a Class XE – Safe Haven Enterprise visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 5 February 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(a) or s. 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s. 36(2)(b) and s. 36(2)(c) of the Act).

3. The matter was originally listed for hearing on 27 March 2020. However, the implementation of COVID-19 protocols delayed the hearing until 21 August 2020. The applicant appeared by video link on 21 August 2020 to make submissions and give evidence. The hearing was conducted with the assistance of a Vietnamese interpreter.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

9. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant’s claims invoke Australia’s protection obligations as provided for in ss. 36(2)(aa) or 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant entered Australia [in] July 2019 on a [Country 1] passport in the name of [Alias 1].  The passport was determined to be fraudulent and the applicant was refused immigration clearance. Departmental officers found a photocopy of the applicant’s Vietnamese passport on the mobile phone of a person travelling with the applicant. It has been accepted by the applicant that the Vietnamese passport is his.

13. The applicant’s claims for protection are summarised in the delegate’s decision and, subject to the matters arising at the hearing referred to below, are as follows.

14. The applicant was born in Haiphong, Vietnam, on [date]. Since about 2013, he and his wife and [children] resided in Mong Cai, Quang Ninh Province, on the Chinese border. He has been working as [an] [Occupation 1].

15. In about 2018 he coerced by a criminal gang led by a [Mr A] into cooperating with their activities. The gangsters followed the applicant to [Country 2] when he was purchasing [goods] for his business and attempted to obtain his assistance to use his delivery for the importation of contraband to Vietnam. The applicant refused to cooperate. He broke his contact with the gangsters and started receiving death threats. He left Vietnam and travelled to [Country 3], [Country 4] and [Country 5] where he attempted unsuccessfully to seek asylum. Eventually he travelled to [Country 1] where a friend procured a bogus blatant passport for him.

16. The applicant claims to fear returning to Vietnam because the gangsters would shoot him for causing them financial losses. He claims to have seen them doing that to other people. He does not have faith in the ability and willingness of the Communist government of Vietnam to protect him. He claims that the local police chief ridiculed him when he complained about the gangsters’ harassment.

17. The applicant did not adduce any documentary material or submissions beyond that available to the delegate.

18. At the hearing, he admitted that there was no ‘concrete’ evidence relating to any aspect of his claims.  He was asked how he became aware of the threat to do him harm, he told the Tribunal that the gang had kidnapped him once before. It was put to him that this was a discrete instance of harm, not merely the threat of harm, and had not formed part of his original claims. The Tribunal warned the applicant of the implications in respect of his credibility by the application of section 423A and asked him if there might be some misunderstanding respect of his original claims and, if not, if there was any reason why that claim was not presented prior to the delegate’s decision. He claimed that he completed the application form without the assistance of a professional interpreter and did not fully understand the implications of not providing all of the relevant details. I told him that, were this fresh claim to be accepted, serious inconsistencies in his claims would arise. His detailed claim, that the village police chief fobbed off his report on the basis that nothing had happened to the applicant yet and that the police therefore had nothing to go on, would make no sense in the context of having already been kidnapped by the same gang. It was put to the applicant that the Tribunal, therefore, may well come to the view that some or all of his evidence in respect of his claims might be untruthful. The applicant responded that the Tribunal would need to make up its own mind.

19. The applicant was asked whether, following his departure from Vietnam, the gang had made any attempt to locate him or to take matters up with his family. He said that the gang had made contact with his wife but had not pursued the matter with her. He said that, in response, his wife had changed her telephone number. He claims his wife told him of this by telephone and that she had also been in touch with his friends. He admitted that there is no evidence to support this claim: there are no text messages, telephone records or social media communications between him and his wife or any of his friends on this matter. When told that the absence of any record of communications on such an important issue was scarcely credible, the applicant said that he tried to keep communications to a minimum. When it was put to him that he must have been aware, at least since February 2020 when the original application was determined, that some evidence may be of assistance, he said that this had not occurred to him.

20. The applicant was asked about the circumstances in which he procured the false [Country 1] passport and how his travelling companion (‘[Mr B]’) came to have a photograph of his Vietnamese passport.  He said that, at the time he left Vietnam, he had not formed any intention to travel to Australia. He travelled between several countries in Southeast Asia, first to [Country 4] by sea, then returning to Vietnam, then to [Country 1] by sea, then to [Country 4] and then to [Country 3], from where he caught a flight to Australia.  It was in [Country 3] that he became acquainted with [Mr B], having been on the same flight and staying in the same hotel as him. It was also in [Country 3] that he made contact with a [Country 1] acquaintance (‘[Mr C]’), who was able to procure the false [Country 1] passport. At the time, the applicant says, he was considering taking up residence in [Country 1]. It was put to the applicant that there must be some error in his narrative because, in response to question 85 in his protection visa application (“If you cannot provide a document, please indicate which document and explain why”), the applicant wrote: “Before fleeing [abroad], I had a Vietnamese passport and all my papers. During my stay in [Country 4], I also had a mental panic so I accidentally lost a wallet which contained all my papers.”  It therefore could not be the case that [Mr B] took a photograph of the Vietnamese passport in [Country 3] which had, on the applicant’s narrative, already been lost. The applicant claimed that account in his application contains the ‘basic’ details, which were given to the best of his ability. He requested that, given the quality of the interpretation services at the hearing, if there was any conflict between what he had written in his application and what he told the Tribunal, should prefer what he told the Tribunal. So far as is possible, I take account of the interpretation difficulties he has encountered in preparing his claims but the inconsistencies in the applicant’s evidence referred to above do not seem to arise solely from language problems.

21. On the basis of the applicant’s evidence to the Tribunal and having regard to the provisions referred to in paragraphs 8 and 9 above, I cannot be satisfied that his encounter with the criminal gang occurred as claimed, or at all. I am also not satisfied that his encounter with the village police chief in Vietnam occurred as claimed, or at all. I am not satisfied that the criminal gang, or any criminal gang, seeks to do him harm for the reasons he claims, or at all. I am also not satisfied that the circumstances in which he came to enter Australia on a bogus passport are those claimed by the applicant.

22. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

23. 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.

24. ‘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.

25. 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.

26. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

27. 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.

28. Country information is that organised criminal networks are a continuing problem in Vietnam but authorities have made increased efforts to tackle them stop credible sources indicate that organised gangs operate a range of illicit operations including illegal moneylending gambling, extortion, prostitution, human trafficking, and the production, supply, distribution and import/export of illicit drugs.[1]

    [1] DFAT Country Information Report Vietnam, 13 December 2019, p.16

29. Police are effective in maintaining public order but have limited capacity in other areas, especially investigations. While the Ministry of Public Security is responsible for internal security and controls the national police, in practice, provincial and local level police often maintain significant discretion in their activities. People’s committees have substantial authority over police forces and prosecutors at the provincial, district and local levels.[2]

    [2] Country Report on Human Rights Practices 2018 – Vietnam, US Department of State, 13 March 2019, p. 7

30. The country information is that, whilst the Vietnamese institutions that provide state protection, particularly at the commune level, are vulnerable to corruption and often act with impunity, the authorities appear to be making inroads in arresting members of organised criminal groups who attempt to blackmail victims through use or threat of violence.[3]

    [3] DFAT Country Information Report Vietnam, 13 December 2019, p.40

31. The applicant denied holding any particular political views or professing any religious affiliation. Even if I am mistaken in my findings as to the credibility of his claims, there is no basis upon which I can find that he may face the risk of significant harm, or less than significant harm, if returned to Vietnam. Any such risk, which I do not in any event accept as a real risk, I am satisfied, would entitle him to the protection of the state in the same manner as any other member of the population.

32. Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk that the applicant will suffer significant harm within the meaning of s. 36(2)(aa) of the Act.

33. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a protection visa.

    James Lambie
    Senior Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …