2009242 (Refugee)

2009242 (Refugee) [2022] AATA 1867 (27 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009242
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Joseph Lindsay
DATE:27 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 April 2022 at 1:35pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – “Formosa” incident – applicant gave inconsistent information – involved in protests in connection with the “Formosa scandal”– applicant does not have a well-founded fear of persecution – applicant is not a witness of truth –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426, 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 dependant.
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 6 May 2020 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 13 November 2019.
The applicant appeared before the Tribunal on 16 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–5LA, 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
In his electronic protection visa application the applicant claimed, in summary, that when he was in Vietnam he had been involved in multiple protests against the government. In particular, the applicant stated that he had been involved in protests in connection with the “Formosa scandal” and the creation of a “Special economic zone.” He claimed his parents are “fishermen” by trade and that the pollution caused the fish to be poisoned and die, and this was a situation that adversely impacted on his family. He claimed he was harmed when he was in Vietnam and claimed he had been abused when he had protested and he had been arrested several times. He claimed his career is at “a standstill” because his employer was too afraid to give him anymore “responsibilities” in fear of backlash from the “communists.”
In the hearing, the Tribunal spoke with the applicant about his claims. In the hearing, the applicant said he was born in Vietnam and grew up in Vietnam. He said he left school early, but got to [a] [grade], and then went on the fishing boats and helped his father go fishing. He said his father had been a fisherman since before the applicant was born. He said his father is still working as a fisherman because, he said, if his family did not go fishing they would not have anything to eat. He said, including himself, there were[number] children in the family. He said his aunt is in Australia and he has a younger sister in Australia who came to Australia before him. He claimed his aunt sponsored the applicant to come to Australia on a visitor visa, but his aunt has also travelled back to Vietnam.
When the Tribunal asked the applicant why he left Vietnam, he said that because of “Formosa” his family did not catch a lot of fish, but the fish they did catch they were not able to sell. He said he needed to be able to look after his family members, and this was the only reason he left Vietnam.
When the Tribunal asked the applicant if he feared going back to Vietnam, he said he did fear going back to Vietnam because “they” would create problems for him. He said since he has come to Australia he has been “against” Vietnam and so the Vietnamese authorities would cause a lot of problems for him.
When asked if he completed his own protection visa application, the applicant said another person helped him, but that the information in the protection visa application was correct and that he signed his protection visa application.
The Tribunal put to the applicant that it may find that his protection claims are not credible.
The Tribunal put to the applicant that in his protection visa application, in regard to his education, it stated that the applicant attended [a univerisity] from 1 February 2011 to 19 May 2015 and he completed a [degree], but in the hearing the applicant said he left school early and only completed up to [a grade]. When the Tribunal asked the applicant to explain this inconsistency, and put to him that the Tribunal may find he had not given credible information about his education, the applicant said he did not know what information was put in his protection application.
The Tribunal put to the applicant that in his protection visa application, in regard to his employment, it stated that he had been employed as an [occupation] from [June] 2015 to [October] 2019 – just before the applicant left Vietnam to come to Australia. However, in the hearing, the applicant said he only worked in fishing. When the Tribunal asked the applicant to explain this inconsistency, and put to him that the Tribunal may find he had not given credible information about his employment, the applicant said he did not know what information was put in his protection application.
The Tribunal put to the applicant that in his protection visa application, in regard to his protection claims, it stated that he had joined in protests and was arrested several times and harmed. However, in the hearing, the applicant made no mention of any such claims, despite questioning from the Tribunal to ascertain if he had any further claims. When the Tribunal asked the applicant to explain this inconsistency, and put to him that the Tribunal may find he had not given credible information about any of his protection claims, the applicant said in Vietnam the authorities persecute people but they do it “under cover.” The Tribunal put to the applicant that it may find that none of the applicant’s protection claims were credible, including any claims about the “Formosa” incident or in relation to the creation of “Special economic zones”, or being involved in fishing, or being involved in protests or being arrested, or having any issues with his employment as a result of being involved in any protests. In response, the applicant said the Vietnamese government has hidden everything.
The Tribunal put to the applicant that it may find that he has not been discriminated against or suffered persecution from anyone in Vietnam, including the Vietnamese authorities. The Tribunal put to the applicant that if the Vietnamese authorities had any interest in the applicant, he would have been stopped at the airport and prevented from leaving Vietnam. In response, the applicant said if he had kept evidence he would not have been allowed to leave Vietnam.
The Tribunal put to the applicant that it may find that he has not engaged in any activities against the Vietnamese government since he has been in Australia, and in response the applicant said nothing has caused him to join in any protests in Australia.
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 his protection claims. The Tribunal finds that the applicant gave inconsistent information on multiple grounds.
The Tribunal finds that the applicant gave inconsistent information in respect to whether or not he received assistance in preparing his written protection application where on his application he indicated he did not have assistance in preparing the application, but in the hearing, he said he did have assistance in preparing his application. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that the applicant gave inconsistent information about his education and his employment history. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
The Tribunal finds that there were significant differences between the applicant’s claim of alleged harm when he was in Vietnam, the Tribunal finds the applicant’s written claims are significantly different to the claims he made at the hearing.
The Tribunal finds the applicant gave inconsistent evidence in respect to his protection claims, where in his protection visa application he claimed he had joined in protests and was arrested several times and harmed, but in the hearing the applicant made no mention of any such claims, despite questioning from the Tribunal to ascertain if he had any further claims. The Tribunal is not satisfied by the applicant’s explanation for the inconsistent information he provided in this respect and finds that the applicant did not give credible information in this respect.
In summary, the Tribunal does not accept that any of the applicant’s protection claims are credible. Specifically, the Tribunal does not accept his claims:
-that when he was in Vietnam he had been involved in multiple protests against the government.
-that he had been involved in protests in connection with the “Formosa scandal” and the creation of a “Special economic zone.”
-that his parents are “fishermen” by trade and that the pollution caused the fish to be poisoned and die, and this was a situation that adversely impacted on his family.
-that he was harmed when he was in Vietnam and he had been abused when he had protested and he had been arrested several times.
-that his career is at “a standstill” because his employer was too afraid to give him anymore “responsibilities” in fear of backlash from the “communists.”
The Tribunal also does not accept the applicant’s claims that he has been discriminated against or suffered persecution from anyone in Vietnam, including the Vietnamese authorities. The Tribunal finds that if the Vietnamese authorities had any interest in the applicant, he would have been stopped at the airport and prevented from leaving Vietnam. The Tribunal also does not accept the applicant’s claims that he has engaged in any activities against the Vietnamese government since he has been in Australia.
In considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant gave credible information in respect to his protection claims and finds that none of the applicant’s protection claims are credible.
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 criteria 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 of 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 of persecution would not exist if it were assumed that the fear of 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 1867

27 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice