2009539 (Refugee)

[2022] AATA 847

2009539 (Refugee) [2022] AATA 847 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2009539

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 February 2022 at 11:10 am (QLD time)

DATE OF WRITTEN RECORD:                23 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 March 2022 at 5:19pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – pro-democracy supporter – opposition to the Communist government – particular social group – failed asylum seeker – corruption – fear of detention – employment – economic hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 431
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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 June 2020 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 3 February 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations. The applicant is a person in respect of whom Australia has protection obligations under the Refugee Criterion or on complementary protection grounds. Where relevant, the tribunal has taken into account the policy guidelines prepared by the Department of Home Affairs. I point out that the oral decision commenced at 11.30 am. And country information was considered as prepared by the Department of Foreign Affairs and Trade.

   FINDINGS

4. In assessing the applicant's case, the tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fears, or that the fear is well-founded, or that it is for a reason that is claimed.  A fear of persecution is not well-founded if it is assumed or mere speculation.  The relevant facts of the case need to be supplied by the applicant himself.  In determining whether an applicant is entitled to protection, the tribunal must first make findings of fact.  I make the following findings.

5. The applicant claims to be a citizen of Vietnam and provided a copy of his Vietnamese passport to the Department, and the tribunal finds the applicant is a national of Vietnam.  This is his receiving country for the purposes of complementary protection as well.  There is no evidence before the tribunal to suggest that the applicant has the right to enter and reside in any safe third country.  The tribunal has held this hearing as a video hearing on Microsoft Teams.  This is because of the situation with the COVID-19 epidemic.  The tribunal has determined that it is reasonable to hold the hearing by video, having regard to the nature of the matter and the individual circumstances of the applicant.

6. The tribunal has also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted by video.  The applicant did not raise concerns as to conducting the review by video and confirmed his ability to do so.  The tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  The applicant was not represented in relation to the review.  The applicant's evidence in his written application is along these lines.

7. The applicant said that since he was a secondary student, he had an open mind on Vietnamese Government policies and that there had been a strict control over democracy and human rights, and he was concerned about being held for questioning and warnings against his family, relatives and friends.  He had joined a group of young people opposing the government.  He was concerned about official corruption.  He opposed government policies.  He was called "anti-state" on [social media].  He was banned and controlled.  He faced possible questioning, suspected of being a spy, opposing the people, he might face court proceedings and/or gaol, and he might be banned from work, he might become mentally stressed by local authorities.

8. The tribunal discussed with the applicant his background and his claims.  He is [age] years old.  His mother conducts a small business in Vietnam.  His father died 10 or so years ago.  He had worked as [an occupation 1] and later was operating a [business].  He has a [sibling] in Vietnam.  He had worked in [specified roles] in Vietnam.  He had also worked in his uncle's business.  In Australia, he had been working in farm work.  He had not attended university.  He is single and does not have children.  He had help completing his application from a person he had met in Melbourne.  That was in 2019.

9. He originally came to Australia in October 2013.  He was under a tourist visa to attend a wedding in 2013.  After that visa expired, he obtained work and did not hold a visa for around six years.  He let this go on for this long because he did not know anything about the subject of visas.  He had heard from people that he needed to apply legally and not worry about ramifications.  He is in rural Victoria and has saved very little money in farm work.  He sends money home to his family.  He had no interview with the Department.  He does not know what was written down on his behalf.

10. Someone else had taken care of his visa application.  He said that here he had a job and he had nothing in Vietnam.  His English is very limited, and he cannot read English.  He did not understand the general concept of protection visas.  He had heard of the topic of refugees or asylum seekers from internet and radio.  I asked whether there was any reason why he would be considered an asylum seeker, a refugee or protection seeker.  He said there was no reason.  I asked if he indeed had had an interest in politics in school and he said he could not comment.

11. As for being accused of being anti-government or a propaganda person against the government, he said that no one would accuse him of such things.  Despite the written claims, he had never been held up for questioning by the authorities.  He did not have a fear of court proceedings.  He did not have a fear of being gaoled for any of these things.  He abandoned his claim of being mentally stressed by local authorities, and there was no reason for authorities harming or bothering him.  He said he was not sure if he was interested in politics.  He said he saw politics online from time to time.

12. He said sometimes he does follow it.  He was not sure if his family and friends were active in politics because the family is not living together, or the family was not living with him, in particular.  I asked if there was any other reason why he would fear going back to Vietnam.  He said the authorities might know that he had asked to be a refugee, and this could cause trouble.  I asked what made him think that and he said he had read this online and heard from other persons.  I make findings on this point below, but firstly I will deal with the previous claims.

13. I find that the applicant in the hearing abandoned his written claims altogether.  I find that his personal details as described are correct.  I find his motive to come to Australia was economic improvement and helping his family.  I do not accept he has been politically active in any way.  I find that his claims were written down completely unbeknown to him.  I find that it is unacceptable for claims to be made which are done without a person's knowledge.  I find in any event that he is not accused of being anti-Vietnam or anti-state.

14. There are no grounds to find that he would be accused of being a propaganda person.  He does not face being gaoled or court proceedings.  He does not have a fear of being gaoled for this, and he was not and will not be mentally stressed by local authorities.  He has only a passing interest in politics.  He is not active nor are his family or friends.  He does not risk harm for these reasons if returned to Vietnam.  In regards to being a failed asylum seeker and being returned to Vietnam, the tribunal discussed the following DFAT Vietnam information report [of 11 January 2022].

15. 5.30 discusses people-smuggling victims.  The tribunal finds that this does not apply.  He came of his own free will and legally departed Vietnam.  5.31 says that authorities occasionally question returnees from Australia when they get back to Vietnam.  These occasional interviews usually take between one and two hours and focus on illegal movement.  The tribunal found that it would be quickly established that there was no illegal movement.  Now, the applicant accepted that he had left legally.  5.32 discusses failed asylum seekers facing difficulties on return.

16. It is harder to get a job, can be more challenging to get government social services, and there might be cases where household registration is ceased.  NGOs can give some limited help.  The applicant did not wish to discuss this in detail, but when pressed about his household registration, said that he believed he was still on it, and agreed that employment would be more difficult.  The tribunal finds that overall, employment might be somewhat harder for him to find, but not to the point of seriousness, and it appears his household registration is still intact.

17. The country information discusses vulnerability of people with high levels of debt.  The tribunal established the applicant has no debt and 5.33 does not apply.  5.34 states that being a failed asylum seeker is not generally stigmatised and internal and external migration is even encouraged by the government, and the applicant raised no objection to that assessment.  The tribunal established that he is not  in an ethnic minority in Vietnam, and the tribunal finds on the country information that he has no particular vulnerability as an unsuccessful asylum seeker.

18. The tribunal finds the applicant's oral evidence to be truthful, noting that it is an unacceptable situation for him to not know what others have claimed on his behalf.  He has walked away from his written claims, and the tribunal on this evidence does not accept that he faces any chance of being harmed for any of the reasons claimed.  I also do not accept that he faces harm on return as an unsuccessful asylum seeker.  Although employment conditions may be tougher, he still has an intact family, his mother and [sibling] residing in his old household.

19. I find there is no real chance the applicant will be harmed for any reason on return to Vietnam now or in the reasonably foreseeable future.  I have not accepted there would be a real chance of the applicant facing harm from anyone on return to Vietnam now or in the reasonably foreseeable future, and for complementary protection, it is noted the real risk test is the same standard as the real chance test, and I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Vietnam that there is a real risk the applicant will suffer significant harm.

20. Taking the applicant's claims at their highest, the tribunal finds that the applicant has not provided enough to establish that he will be harmed for any of the reasons claimed or for any other reason.  Thus, the tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations.  Under section 36(2)(a) or section 36(2)(aa), there is no suggestion the applicant is a member of an Australian family unit as a person who does satisfy those criteria. 

    The tribunal finds the applicant does not satisfy the criterion in section 36(2).  The time is now 12.10 pm and the tribunal makes the following decision. 

    DECISION

21. The Tribunal affirms the decision under review.

    Justin Meyer
    Member