2008736 (Refugee)

2008736 (Refugee) [2022] AATA 2288 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2008736

COUNTRY OF REFERENCE: Vietnam
MEMBER:Joseph Lindsay
DATE:11 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 May 2022 at 10:23am

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – religion – Catholic – protests – detention – period of unlawful residence – spouse’s criminal convictions in Australia – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 19 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Vietnam, applied for the visa on 6 October 2016. The applicant appeared before the Tribunal on 8 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant made the following summarised claims in her written protection visa application. The applicant indicated that she left Vietnam because she did not like the Vietnamese government. The applicant claimed that when she was in Vietnam, she “often” participated in protests against the Vietnamese government. She claimed she had been detained for 3 weeks after participating in a protest. She claimed she was told by the police that she would be summoned to court for her participation in the protest against the Vietnamese government. She claimed she regularly goes on social media such as Facebook to make posts and messages against the Vietnamese government. She claimed that her family in Vietnam had protested against the Vietnamese government about the “toxic environment” in her hometown, and she thought this might also be a reason why she would be arrested if she returned to Vietnam. She claimed her family had been “categorised” as one of the protest groups by the Vietnamese government. She claimed her family had been openly expressing their anger against the Vietnamese government and organising protests against the Vietnamese government.
In the hearing, the applicant gave the following evidence. The applicant said she was born in Binh Thuan in Vietnam on [date]. She said she moved to Vung Tau with her family when she was very young. She said she grew up in Vung Tau and she went to school there. She said her parents are in Vietnam and she has [specified family members] who are all in Vietnam. She said she got married [in] April 2018 in Australia, and her spouse’s name is [name]. She said he has one son, named [name] born on [date].
The applicant said she left Vietnam and came to Australia in August 2010, now over eleven years ago. She said she came on a student visa, however she did not complete an English course and nor did she complete [her specified course]. She said that when she got to Australia, she had lived with her mother’s friend and she went to work doing such work as [occupation 1].
In respect to her student visa, the applicant said she did not know when her student visa was cancelled. She made admissions that at the time she had applied for a protection visa, she had been unlawful for about 4 or 5 years and said that she applied for a protection visa because she wanted to stay in Australia for a long time.
In respect to her protection visa application, the applicant said that she did not prepare the application herself and she did not read what was written in the application. She said she gave her information to her friend to prepare the application for her. However, the applicant said that all the information in the protection visa application was complete, correct and up to date in every detail as at the time it was submitted to the Department. When the Tribunal asked the applicant what her written protection claims were, she said she did not remember. When the Tribunal asked the applicant if she had any protection claims to make, the applicant made no response, and then said she could not remember.
The applicant then said that her spouse had been convicted in Australia for [a specified crime], and she was concerned about what would happen to her if she returned to Vietnam. She said her spouse was now in [a named] detention centre.
The applicant said that, if she went back to Vietnam, her concern was that because she was a Catholic and had lived in sin, she was worried about how others would view her. The Tribunal discussed the claims in the written application with the applicant. The applicant then made admissions that all of the claims written in her protection application were false.
The Tribunal spoke to the applicant about the country information in the DFAT Country Information Report for Vietnam dated 13 December 2019, which states:
3.37 DFAT 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 authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.
The Tribunal put to the applicant that, given the country information, the Tribunal may not accept that the applicant would face either a real chance of serious harm or a real risk of significant harm, whether it be from her family, or community or Vietnamese authorities, should she return to Vietnam in the foreseeable future. The applicant made no response.
The Tribunal put to the applicant that the Tribunal may not accept that the applicant would face either a real chance of serious harm or a real risk of significant harm, whether it be from her family, or community or Vietnamese authorities, given it was her spouse and not herself that had been convicted of criminal offences in Australia. The applicant made no response.
When asked what she would do if she went back to Vietnam, the applicant said she would return to Vung Tau with her son. The applicant said she had no further information to provide to the Tribunal.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal holds great concerns about the applicant’s credibility. Indeed, the Tribunal is not satisfied that the applicant has given credible information in respect to her protection claims. The Tribunal accepts that the applicant has remained in Australia unlawfully for many years, and if she had a genuine fear of returning to Vietnam, she would have applied for a protection visa much sooner than she did.
The Tribunal finds that the applicant’s claims in her written protection visa application are not credible. The Tribunal specifically does not accept that she left Vietnam because she did not like the Vietnamese government; or that when she was in Vietnam she “often” participated in protests against the Vietnamese government; or that she had been detained for 3 weeks after participating in a protest; or that she was told by the police that she would be summoned to court for her participation in the protest against the Vietnamese government; or that she regularly goes on social media such as Facebook to make posts and messages against the Vietnamese government; or that her family in Vietnam had protested against the Vietnamese government about the “toxic environment” in her hometown; or that she has a genuine belief that she would be arrested if she returned to Vietnam because her family had been “categorised” as one of the protest groups by the Vietnamese government; or that family had been openly expressing their anger against the Vietnamese government and organising protests against the Vietnamese government.
The Tribunal has also considered the applicant’s claim that, if she went back to Vietnam, she was worried about how others would view her given she was a Catholic and believed had lived in sin. The Tribunal has considered the country information in the DFAT Country Information Report for Vietnam dated 13 December 2019, as well as the more recent DFAT Country Information Report for Vietnam dated 11 January 2022 about the treatment of Catholics in Vietnam. The country information in the DFAT Country Information Report for Vietnam dated 13 December 2019, as discussed above, is reasonably consistent with the information in the DFAT Country Information Report for Vietnam dated 11 January 2022 about the treatment of Catholics in Vietnam that states:
3.31 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.
Accordingly, given the country information above, the Tribunal does not accept that the applicant would face either a real chance of serious harm or a real risk of significant harm, whether it be from her family, or community or Vietnamese authorities, should she return to Vietnam in the foreseeable future.
The Tribunal has also considered the applicant’s concern about what would happen to her if she returned to Vietnam given her spouse had been convicted of criminal offences in Australia. Given the information available to the Tribunal, the Tribunal is not satisfied that the applicant would face either a real chance of serious harm or a real risk of significant harm, whether it be from her family, or community or Vietnamese authorities, should she return to Vietnam in the foreseeable future, given it was her spouse and not herself that had been convicted of criminal offences in Australia. The Tribunal finds that the applicant does not have a genuine fear of returning to Vietnam.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

[2022] AATA 2288

11 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice