2009563 (Refugee)
[2021] AATA 5401
•8 December 2021
2009563 (Refugee) [2021] AATA 5401 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2009563
antiCOUNTRY OF REFERENCE: Vietnam
MEMBER:Scott Clarey
DATE:8 December 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 8 December 2021 at 9:47am
CATCHWORDS
REFUGEE – Protection visa – Vietnam – anti-communist party views – member of Viet-Tan Party – views expressed on social media – credibility issues – applicant unaware of contents of application – purpose of application for economic reasons – unlawful status – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
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 5 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant [who] claims to be a citizen of Vietnam, applied for the visa on 12 June 2019. On 5 June 2020, the Department of Home Affairs (the Department) refused to grant the visa. On 7 June 2020, [the applicant] applied to the Tribunal for the review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal on 6 December 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.
Relevant background
[The applicant] is a [age]-year-old Vietnamese national born on [date]. He claimed to be of the Kinh ethnic group and of no particular faith. [The applicant] stated at the hearing that he was single and never married. [The applicant] worked in Vietnam previously [before] arriving in Australia. [The applicant] last arrived in Australia [in] December 2015 on a Subclass 457 visa, having departed Vietnam legally.
Identity
Based on a copy of [the applicant]’s Vietnamese passport provided to the Department, I accept that he is a citizen of Vietnam and that his identity is as he claims it to be. I accept that Vietnam is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims from the protection visa application
[The applicant] set out his claims for protection in his application form as follows:
Q75: I am seeking protection in Australia so that I do not have to return to:
Vietnam
Q76: Why did you leave that country(s)?
A: *Since was [age range] year of age, I discovered the Communist Vietnam is the only ‘1’ party to run and operate the country. With no democratics, no human rights at all. Authorities corruption in every level.
*When I working for living even tougher, harder with the regime. Financial distorsion when I raised any opposed opinions, demanding more democratics/human rights which “hold me up”, threatening of putting in jail for “anti-state government”, stopped not allow myself for works for a living. I objected on “[social media]” which strictly controlled. I seek “working abroad” for better human rights/democratics which my country “do not”have.
Q77: What do you think will happen to you if you return to that country(s)?
A: *As mentioned above: raising opions on “[social media]”, anti-government propaganda could facing 4 to 5 years jails, in-stability the current Communist system.
*Now strongly supported the “Viet-Tan Party”, office in [Australia], which demands change of government, more party to join the government, not just the Communist party. Any members of this party will be arrested in Viet-Nam (which already happened to other people who supported this group)
*Family parents would deep into scary of local authority further threaten, miss-treatment, deep in of menthaly dis-ordered.
*Local authorities financial corruption is demanded.
Q78: Did you experience harm in that country(s)?
A: Yes.
*As discussed above clause 76, hold up for questionings of opposing the government. Not to demand democratics/not to demands human rights (not allow in Viet-nam.)
*Highly mis-treated, threaten the family, not allowed to works for livings.
Q79: Did you seek help within the country(s) after the harm?
A: No.
*With the Communist regime, every other parts of country would be same issues, as running uniform laws.
*No financial supports (for family, for corrupted officials.
*No accommodations.
80 No.
*As same issues mentioned above clause 79, would not achieved any better, only worsen and would be “dead end corner” with the Communist regime.
Q81: Do you think you will be harmed or mistreated if you return to that country(s)?
A: Yes.
*Surely miss-treated, or hold-up for questionings is now a citizen who strongly oppossing the current regime.
*Possible if “court proceeding” for “anti state government” propaganda which surely carry a jail term (as demanding democratics/human rights”, demanding of change of government, demanding more “parties” to operate. Join the current government, which now strickly banned.
Q82:Do you think the authorities of that country(s) can and will protect you if you go back?
A: No.
The Communist government would not and never “protected” citizens who opposing them, out to “arrested” and jails
Q83: Do you think you will be able to relocate within that country(s)?
A: No.
*Nothing different to Communist country like Vietnam, China, North Korea. Same issues every parts of country.
*No financial supports for corrupted Communist officials.
Evidence from the hearing on 6 December 2021
At the outset of the hearing, [the applicant] stated that all of his claims as written in his protection visa application were untrue and that he had in fact no claims, or even intention to apply, for protection in Australia. He told the Tribunal that he was unaware of what claims had been made, and that until recently he was unaware that the visa that an agent had applied for on his behalf was in fact a protection visa. [The applicant] stated that if he were aware that the visa being applied for on his behalf in 2019 was a protection visa, meant for those fleeing persecution, he would not have applied for it. [The applicant] stated that he was not a refugee, he did not fear harm or persecution in Vietnam in the future, and he had never feared (or been a victim of) past harm in Vietnam for any reason. When asked why those claims had been made on his behalf in the protection visa application, [the applicant] said words to the effect that he didn’t know what was being written and had just left it to his lawyer to write what was required. [The applicant] said that he had made the decision to apply for the visa for economic reasons, so he could continue to work and live in Australia. He said that he understood his original visa had been cancelled, but he could not remember when or exactly why. He had not known at the time that he had become unlawful, but said that he understood he did not hold a valid visa from when his original visa was cancelled until he applied for the visa under review and was subsequently granted a bridging visa.
When questioned further on these circumstances, [the applicant] said he had no idea the visa he had applied for was a protection visa, that all he had wanted was a ‘normal visa‘ so he could live and work in Australia lawfully. He reiterated that he still did not know what his claims for protection were. [The applicant] stated that his original decision to move to Australia, and to subsequently apply for a protection visa under false pretences in 2019, was motivated by his desire to improve his economic circumstances and earn a higher relative wage in Australia than he would have otherwise been able to in Vietnam. [The applicant] said that his lawyer at the time had deliberately fabricated the claims so that he could apply for the protection visa to extend his time in Australia to work and save more money. He said that he currently worked on a fruit farm. He reiterated that he was not, and had never been, persecuted in Vietnam for any reason, including for his political beliefs or activities there. He said he did not fear harm of any kind if he were to return to Vietnam. He said that ideally he would like to stay in Australia for another few years to save more money before he returned to Vietnam voluntarily.
For thoroughness, I asked [the applicant] about each of the claims as outlined in his protection visa application. [The applicant] stated unequivocally that he had never held anti-government views or opinions, never been considered an anti-government and/or an anti-communist dissident, had never expessed any such views publicly including posting about these views on social media, was not a supporter of the ‘Viet-Tan’ political party and was not persecuted in any way by the government or any other group in Vietnam. He reiterated that he did not know what these claims made on his behalf were, and that they were fabricated by his lawyer at the time the application was lodged in order to secure a migration outcome.
I asked [the applicant] if there was any other basis upon which he feared harm if he were to return to Vietnam in the foreseeable future. [The applicant] said there was not.
FINDINGS AND REASONS
I accept that [the applicant] is a Vietnamese man of the Kinh ethnicity who is not religious. I accept that he lived previously in Vung Tau City, Vietnam and would likely return there. I accept that he previously worked [in] Vietnam before departing for Australia. I accept that he travelled to Australia not because he feared harm for any reason but because he intended to pursue higher paying work opportunities here. I accept that, by his own admission, the claims on his visa protection application form were fabricated by his then lawyer for the purpose of regularising his migration status and extending his stay in Australia to work and earn money here. I accept that [the applicant] did not have any knowledge of what those claims were.
It follows that I do not accept any of the claims put forward on [the applicant]’s protection visa application because, by his own admission, none of them are true. I therefore do not accept that [the applicant] is a political dissident in Vietnam and/or was or will be persecuted for his political opinions and/or anti-government views, because, by his own admission, this is not true. I do not accept that [the applicant] Holds anti-government views nor that he has ever expressed ani-government views publicly, including through social media. I do not accept that [the applicant] is (or has ever been) a member of an opposition party, including the ‘Viet-Tan’ party, because, by his own admission, this is not true and was fabricated on his behalf for the purpose of securing a migration outcome. I note that on several occasions during the hearing [the applicant] explicitly stated that he did not fear harm of any kind if he were to return to Vietnam nor had he been the victim of past harm while living there. I therefore do not accept that [the applicant] will suffer harm amounting to serious harm, from the Vietnamese government or anybody else for reasons relating to his political opinion and/or political activities of any kind or for any other reason.
For the reasons outlined above I find there is not a real chance that [the applicant] would suffer persecution involving serious harm for reasons of his race, religion, nationality, political opinion (either actual or imputed), or his membership of a particular social group or for any other reason that can be distinguished on the information before me by the authorities or anyone else if he returns to Vietnam, now or in the reasonably foreseeable future.
Conclusion – Refugee grounds
Having considered [the applicant]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that he does not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that he does not have a well-founded fear of persecution.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore [the applicant] does not satisfy the criterion set out in s 36(2)(a).
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Vietnam, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[1]
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Vietnam other than for the reasons discussed above relating to his claims (that he recanted) under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to Vietnam, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Vietnam, there is a real risk that he would: suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by the Vietnamese authorities, or anyone else, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam.
Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no evidence to suggest 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
Member30. 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Appeal
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