2009411 (Refugee)

[2022] AATA 1719

2009411 (Refugee) [2022] AATA 1719 (29 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009411

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Genevieve Hamilton

DATE:29 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2022 at 1:35pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – environmental protester and activist – Formosa toxic waste spill – inadequate compensation and economic hardship – participation in protests and social media activity – obtained passport and departed without difficulty – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65(1)

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applied for the visa on 17 August 2019. The delegate refused to grant the visa on 11 May 2020.  The applicant lodged a review application with the Tribunal on 5 June 2020 and uploaded a copy of the delegate’s decision with his review application. 

   CRITERIA FOR A PROTECTION VISA

3. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

5. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

6. 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.

7. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

8. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

9. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

10. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

    Complementary Protection

11. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

12. Australia does not have complementary protection obligations 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.

    Mandatory considerations

13. 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.

    CLAIMS AND EVIDENCE

14. In his protection visa application the applicant said he was born in Vietnam on [Date] and travels on a Vietnamese passport issued [2018]. He was born in [Town], Phu Vang, Thua Thien Hue Province, lived there until he came to Australia [in] August 2019, and is a Vietnamese citizen. He speaks, reads and writes Vietnamese and is ethnically Vietnamese.

15. From 2013 he was employed as [an Occupation] for a business in another town.  Prior to that he was a seafood seller in his home town. 

16. The applicant said in April 2016 Formosa Plastics Group steel plant in Ha Tinh City spilled toxic waste polluting more than 200kms of coastline including his home town.  It devastated sea life.  The applicant’s family are fishermen.  It put them out of work.  People protested and asked for justice.  The applicant was involved with this campaign.  But protesters were arrested and beaten by the authorities in Hue Province.  The applicant posted stories on [Social media] criticising Formosa and asking the Government to kick them out, calling for compensation for fishermen and help fishermen find new jobs.  He was harassed by Hue authorities.  The said if he did not delete his posts he would face a couple of years in gaol. He decided to delete his posts because he was living with his parents.  Other bloggers were arrested and gaoled.  His parents were told to stop selling seafood, the local government took their equipment away and fined them.  Others who had the support of the authorities were not penalised.  He saw that the system was unfair in Vietnam.  He came to the view that the Vietnamese Government did not respect human rights and he cannot live under that system.  The applicant cited various provisions of the Penal Code concerning political crimes. 

17. The applicant submitted a copy of a document written in Vietnamese and accompanied by a certified translation, discussed below.  The applicant attended a hearing of the Tribunal on 22 April 2022, conducted with the assistance of a Vietnamese interpreter.  He said he was born in a fishing town, his father was a fisherman and had a small boat.  He sold seafood straight off the pier.  After the Formosa toxic waste spill he had to rely on a [shop] for income.  They received no compensation so he had to sell the boat.  The applicant has a younger brother and sister, his brother is trying to find consistent work and his sister is still at school.  The applicant got a job in a [company]. 

18. The applicant said he participated in protests about evicting the Formosa plant and obtaining compensation for the fishermen.  Protests were dispersed by the government.  The compensation was distributed unfairly.  He also posted many posts about it on social media.  His village chief told him to remove the posts. 

19. Some people were compensated but not his family.  There followed a discussion of the document referred to above, which is a compensation claim made by the applicant’s parents in relation to the loss of their business selling seafood to three local restaurants named in the document. 

20. The Tribunal asked the applicant why he could not go back to Vietnam now.  He said there was no freedom of speech there.  The Tribunal asked the applicant how this would affect him, how would he come to the attention of the authorities if he went back to Vietnam?  The applicant said the local government are always monitoring his family.  If business is going well officials harass them and ask for bribes to pass regulations concerning their business.  The Tribunal observed that food businesses were prone to be regulated by local authorities.  The applicant said his family was forced to close their fishing business.  The Tribunal observed that, while very unfortunate, this may not amount to serious or significant harm as they were still able to earn a livelihood although reduced. 

21. The Tribunal asked the applicant if he had been involved in any other political activity in the past.  The applicant said he had not.  The Tribunal observed that the Formosa toxic pollution occurred some years ago, and since then the applicant was able to obtain a passport and leave Vietnam without difficulties, which could indicate that he was not of adverse interest to the authorities.  The applicant declined to comment on this.  The Tribunal observed that the applicant did not seem to be a political activist generally so it envisaged the applicant might not get himself into trouble with the Vietnamese authorities in future in relation to his political opinion.  The applicant had no comment to make on this.  He confirmed that there were no other reasons he feared harm in Vietnam.  As the eldest son he worried about his family.

22. The Tribunal put to the applicant that the same Member had decided his mother’s protection application and she had not made claims in relation to Formosa in particular.  The applicant said he did not know what was in her application, and that she could not recall its contents herself. 

    Country information

23. DFAT Country Information Report (Vietnam) states:

    3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.

    FINDINGS AND REASONS

24. Based on the information in his application, the Tribunal finds that the applicant is a national of Vietnam. 

25. Based on his locality in Vietnam and credible evidence of being from a fishing family, the Tribunal accepts that the applicant and his family were very negatively affected by the Formosa chemical spill.  The Tribunal therefore accepts that the applicant attended related protests and posted online (as this would be natural for him to do), and that he was warned off this by local authorities and removed his posts. 

26. The Tribunal drew no adverse inference from the absence of a reference to the Formosa spill in the applicant’s mother’s application.  She did mention financial difficulties and this is not inconsistent with the applicant’s claims. 

27. Based on his evidence and the country information the Tribunal accepts that the applicant’s family were inadequately compensated for the effects of the spill and that this remains a grievance for him.  He states that the compensation was denied to them for political reasons because they do not have a good relationship with the government.  The Tribunal assesses that such disparity was not directed at the applicant and his family but rather favoured those with more influence.  

28. The applicant was not seriously harmed in relation to this matter in the sense set out in the Act.  He was made to remove his social media posts, he was dispersed from protesting.  This is a breach of his right to freedom of speech but it does not amount to persecution.  Although it has been difficult for his family to maintain their livelihood, their capacity to subsist has not been threatened. 

29. The applicant reports that his family endures interference with the running of their business by the local authorities.  However, on the evidence before it the Tribunal is not satisfied that this is anything more than the normal application of regulations in a country where official corruption is quite high, or that it is targeted at them for one of the reasons set out in the Act. 

30. The Tribunal accepts that the applicant opposes the Communist Party of Vietnam.  But the applicant is not a political activist generally and there is no evidence the authorities have any current adverse interest in him.  The Formosa spill occurred nearly 6 years ago.  The applicant has had no further confrontations with the authorities in relation to it.  He said that he had no other involvement in politics. 

31. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future in relation to his political opinion or any other reason specified in the Act.  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

32. Having concluded that the applicant does not meet the refugee criterion, the Tribunal considered whether he meets the complementary protection criterion.  The Tribunal has not accepted that the applicant faces a real chance of serious harm, and the applicant made no claims other than those discussed above.  Accordingly the Tribunal is not satisfied that there is a real risk that he will suffer significant harm, as defined, on return to Vietnam. 

    CONCLUSION

33. 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) or s 36(2(aa).

34. 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.

35. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member