2009742 (Refugee)

2009742 (Refugee) [2021] AATA 5145 (30 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009742
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:30 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 November 2021 at 9:15am
CATCHWORDS
REFUGEE – protection visa – Vietnam – failure to appear before Tribunal to give evidence – vague claims – significant period unlawful in community – delay in lodging visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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
Background

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 applied for a protection visa on 29 April 2019. A delegate of the Department refused the applicant’s protection visa on 5 June 2020.
The applicant applied to this Tribunal for a review of that decision on 11 June 2020.
Claims and Evidence
Evidence before the Department
In her written protection application, the applicant stated that she was born in Nghe An province and that her parents, brother and sister are all residing in Vietnam. The applicant stated she lived in Nghe An from [birth] to September 2013 and that she had been living in Australia since September 2013. The applicant stated she had last arrived in Australia on [date] September 2013 on a student visa.
The applicant stated she had left Vietnam because she borrowed money from some people and cannot pay them back. In response to the question as to whether she had experienced harm in Vietnam, she stated ‘no’. The applicant stated she had tried to move to another city but they could still find her. She stated that if she returns, she may be killed. She stated that she does not believe the authorities could protect her because they do not care about her safety, and she could not return to another area of Vietnam because wherever she goes, they can find her.
A delegate of the Department found that the applicant is not a refugee as her claims relate to a private dispute and do not relate to one of the grounds in s.5J(1)(a). The delegate considered relevant country information and found that the applicant is not owed complementary protection as she could obtain from authorities in Vietnam protection such that there would not be a real risk she faces significant harm on return to Vietnam.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 15 October 2021, the Tribunal wrote to the applicant stating that due to the COVID-19 pandemic, the Tribunal was not scheduling face-to-face hearings and was proposing to schedule a video hearing with the applicant. The applicant was requested to advise, within seven days, if she did not have appropriate technology or if there were any other barriers to her participating in a hearing by video. No response was received from the applicant to the Tribunal’s correspondence.
On 19 November 2021, the Tribunal wrote to the applicant stating that it had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to a hearing by MS Teams video on 6 December 2021. The Tribunal considered it appropriate to hold the hearing by video, having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter, and to the delay in this matter if it were not heard by video.
On 25 November 2021, the applicant provided a ‘Hearing Response’ form to the Tribunal, in which she stated she would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. This matter has therefore been determined on the evidence available to the Tribunal.
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.
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.
Assessment, Reasons and Findings
The applicant travelled to Australia on a Vietnamese passport and has at all times maintained she is a citizen of Vietnam. The Tribunal accepts the applicant is a Vietnamese citizen and has assessed her claims against Vietnam as her country of nationality.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Because of the applicant’s delay in claiming protection, her failure to attend the Tribunal hearing and for other reasons set out below, the Tribunal does not accept the applicant’s claimed reasons for having left Vietnam or for fearing return to Vietnam.
Firstly, the applicant stated in her written protection application that she last arrived in Australia on [date] September 2013 on a student visa. She stated in the written protection application that she had outstayed her student visa. She did not make a claim for protection until 29 April 2019, some five-and-a-half years after she arrived in Australia. The Tribunal considers it implausible that, if the applicant fears harm upon return to Vietnam as she claims, she would not have applied for protection at the earliest opportunity. The Tribunal also considers it implausible that the applicant would remain in Australia for a period of time without a visa if she fears harm upon return to Vietnam as claimed. The significant delay in the applicant claiming protection, in addition to the period of time in which she states she did not hold any visa to remain in Australia, causes significant doubt for the Tribunal that the applicant left Vietnam due to being unable to repay money she had borrowed or that she fears being harmed upon return to Vietnam for these reasons.
Secondly, the applicant’s failure to attend the Tribunal hearing adds further doubt for the Tribunal that she fears being killed upon return to Vietnam due to borrowing money that she was unable to repay. The applicant was invited to given evidence and present arguments at the Tribunal on the basis that the Tribunal had considered the material before it and was unable to make a favourable decision on that information. The Tribunal would expect that, if the applicant had a genuine fear of returning to Vietnam, she would avail herself of every opportunity to prosecute her claims. The applicant’s declining of appearing before the Tribunal causes further significant doubt for the Tribunal about the credibility of her claims.
Thirdly, the vague nature of the applicant’s claims and the lack of details provided by the applicant in her written protection application causes further doubt for the Tribunal about her claims. The applicant did not specify in her written claims who she had borrowed money from, what amount was borrowed, when the money was borrowed, what the repayment arrangements were, or why she fears being killed and who by upon return to Vietnam. The Tribunal would expect that, if the applicant’s claims were genuine and she fears being harmed upon return to Vietnam, she would have provided sufficient details to ensure that her claims were able to be properly assessed by the Department. The applicant’s failure to provide such details, in addition to the period of time she has spent in Australia without a visa, her significant delay in claiming protection and her failure to appear before the Tribunal to give evidence and present arguments, leads the Tribunal to not accept her stated claims or the reasons she claims she is unable to return to Vietnam.
For the above reasons, the Tribunal does not accept the applicant borrowed money in Vietnam that she was unable to repay or that she had tried to move to another city but the people in question could find her. For the same reasons, the Tribunal does not accept the applicant is at risk of being harmed or killed upon return to Vietnam, or that ‘they’ will find her wherever she goes in Vietnam. The Tribunal is not satisfied the applicant is at risk of harm because of an unpaid loan, if she returns to Vietnam now or in the reasonably foreseeable future.
The Tribunal finds that there is not a real chance the applicant faces persecution, if she returns to Vietnam now or in the reasonably foreseeable future, for any reason. 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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). For the reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
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.
Tamara Hamilton-Noy
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.
…

[2021] AATA 5145

30 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice