2004157 (Refugee) - [2022] AATA 4214

2004157 (Refugee) [2022] AATA 4214 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004157
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Sheridan Lee
DATE:12 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 October 2022 at 1:03pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion and religion – member of anti-government activist group – not personally religious but protested for religious freedom – family’s disagreement with local government over acquisition of land – detained, questioned, warned, banned from school and prevented from finding work – vague, inconsistent and unconvincing claims and evidence – elapse of time – delay in applying for protection – returns after studying in third country and twice from Australia – student visa refused and period as unlawful non-citizen – two Australian-born children not included in application and best interests do not apply – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AZAEH v MIBP [2015] FCA 414
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAKQ v MIBP [2016] FCCA 1186
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLPN v MIAC [2010] FCA 202
SZLVZ v MIAC [2008] FCA 1816
SZNRZ v MIAC [2010] FCA 107
SZQMB v MIAC [2012] FMCA 24
SZRGE v MIAC [2013] FMCA 18
Zhang v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old woman from Hải Phòng, Vietnam. The applicant completed high school in Vietnam in 2005. At the hearing she gave evidence that prior to travelling to Australia, she lived in [Country] for three years, where she studied [Subject]. She returned to Vietnam before travelling to Australia. The applicant first arrived in Australia [in] April 2014 on a Subclass 573 Higher Education Sector visa. At the Tribunal hearing, the applicant advised that she never completed a higher education course in Australia, only an English language course.
The applicant is not religious. She speaks, reads and writes Vietnamese and some English.
The applicant departed Australia and returned to Vietnam [in] October 2015, when her mother passed away. On 30 August 2017, the applicant’s student visa ceased. She applied for a further student visa (Subclass 500) on 27 September 2017, and she was granted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 2004157 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 4214
Decision Date: 12 October 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Vietnam. The applicant claimed to fear persecution due to her alleged involvement with an anti-government activist group and her family's disputes with local authorities over land acquisition. The delegate of the Minister for Immigration had previously found that the applicant would not face a real chance or risk of serious or significant harm in Vietnam. The applicant sought merits review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant was a person to whom Australia owed protection obligations, requiring an assessment of the credibility of her claims and their alignment with the applicable legal framework, specifically the definition of a refugee under the Migration Act 1958. This involved determining if she held a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, and whether effective protection measures were available to her in Vietnam.

The Tribunal's reasoning focused on the applicant's failure to appear at a scheduled video hearing, which initially led to the dismissal of her application. However, the application was reinstated after the applicant explained her misunderstanding of the virtual hearing process. Despite this, the Tribunal ultimately affirmed the delegate's decision. The Tribunal found that the applicant's claims and evidence were vague, inconsistent, and unconvincing, and that there was no evidence to support her assertion of being a high-profile activist of interest to Vietnamese authorities. Furthermore, the Tribunal noted that the applicant's two Australian-born children were not included in her application, and therefore their best interests did not apply to the review. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa, specifically section 36(2) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.Claims and evidenceApplication for protection The application for protection form outlines that:·The Communist party of Vietnam is the only political party in the country. The regime is corrupt and controlling. The applicant objected to the party’s policies.·The applicant was warned, questioned, banned from school, prevented from finding work and prevented from contacting other anti-government group members. Her family were also threatened, and they all became stressed.·The applicant would be at risk of being detained by authorities in Vietnam because she is a member of an anti-government propaganda group. ·She was often opposed to the party policies on [Social media], which is strongly controlled. The applicant would be at risk of court proceedings and jail time as a result of her online activity.·The applicant could be subjected to financial demands because of corruption.·All parts of Vietnam are strictly controlled, and movement can be restricted. The applicant was not invited to participate in an interview with the delegate of the Minister for Immigration. The delegate did not accept that the applicant was a high-profile political activist or that she was of interest to Vietnamese authorities. On 26 February 2020, the delegate found that the applicant would not face a real chance or risk of serious or significant harm in Vietnam. Application for merits review The applicant applied to the Tribunal for merits review of the decision to refuse her protection visa application. A copy of the delegate’s decision was provided to the Tribunal with the application for review. On 13 October 2021, the Tribunal wrote to the applicant informing her that a hearing was likely to proceed via video using Microsoft Teams. The letter asked the applicant to respond within seven days if she had any concerns about the hearing proceeding in this manner. The Tribunal did not receive a response. The applicant was then invited to appear before the Tribunal by video using Microsoft Teams on 1 December 2021 at 2:00pm. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the review applicant an option to join the hearing by audio only by calling with a unique conference ID specified in the hearing invitation. The applicant did not appear before the Tribunal on the day and at the scheduled time. There was no evidence that the applicant attempted to call the Tribunal. As such, I decided to dismiss the application. The applicant made contact with the Tribunal on 8 December 2021 to request reinstatement. The request stated that the applicant did not understand that she was required to click the link to attend or phone the number provided. Instead, she waited for a call. I note that English is not the applicant’s first language and no calls were made to the applicant at the time of the hearing when she did not join the video via the link. In the circumstances, I decided to reinstate the application.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).decision The Tribunal affirms the decision not to grant the applicant a protection visa.Sheridan LeeMemberAttachment - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.