2010154 (Refugee)

2010154 (Refugee) [2023] AATA 4574 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Owen David Harris
CASE NUMBER:  2010154
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Ann Duffield
DATE:20 November 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 November 2023 at 1:44pm

CATCHWORDS
REFUGEE – Protection Visa – Vietnam – particular social group – single mother in Vietnam with a bi-racial child – claims based on flawed legal advice – partner withdrew support for partner visa after birth of child – Australian citizen daughter – Family Court consent orders prevent removal of child from Australia – should applicant be required to depart Australia daughter would be placed in care of the State – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 9 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 5 July 2019. The delegate refused to grant the visa on the basis that she was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 20 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review; however, the representative did not attend the hearing.
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 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
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed and referred to the Minister to recommend he exercise his discretion to grant the visa on compassionate and compelling grounds.
BACKGROUND
The applicant is a citizen of Vietnam born in [year] ([age] years old). There is no evidence before the Tribunal that she is not who she claims to be, and the Tribunal has therefore made this assessment on the basis that Vietnam is the receiving country.
The applicant first arrived in Australia on a student visa in 2010. Until 2015 she was at university in Melbourne. In 2016 came to Canberra and entered into a relationship with an Australian man, [Mr A]. Their daughter [Miss B] was born in [year].
The applicant claims that due to negligence on the part of her agent at the time, [name], her student visa was cancelled, and she was not made aware of this until she and [Mr A] approached Centrelink in July 2018 to inquire about childcare subsidies and change their details. The applicant contacted the department and sought assistance with lodging a BVE so that she could regularise her unlawful status. [Mr A] told the applicant that he was not ready to lodge a partner visa application and asked her and [Miss B] to move out of their home in November 2018.
[Mr A] then initiated Family Court action in around January 2019 order to gain custody of [Miss B] and to prevent the applicant from taking [Miss B] out of Australia. She and [Miss B] were put on the Family Law Watchlist, preventing them from departing Australia. [Mr A] retained possession of [Miss B]’s passport.
In June 2019 [Mr A] and the applicant reached an agreement in relation to the custody of [Miss B]. There is a detailed order in relation to the days and times that [Miss B] is required to be with [Mr A]. There is also an order restraining the applicant from removing [Miss B] from Australia until 13 May 2024.
The applicant sought assistance from Women’s Legal Centre, ACT, who referred her to a firm of migration lawyers, [Firm 1], in the ACT. The applicant has provided written documentation showing that the advice from para legal, Mr [C] (on behalf of lawyer [Ms D]), was for the applicant to apply for a protection visa, which would “keep her in the country indefinitely”. The advice continued that if the department refused the application the chances of success at the AAT would be high and even higher if she sought ministerial intervention. The advice was queried by Legal Aid ACT who wrote to Ms [D] in September 2019 expressing their concerns about the incorrectness of the advice she provided the applicant and pointing out her actions constituted a breach of Parts 2.3 and 8 of the Code of Conduct.
The applicant was advised by [Firm 1] to make the following protection claim:
a.She fears harm in Vietnam on account of her membership of a Particular Social Group (PSG) as a “single mother in Vietnam” with a bi-racial child.
The applicant claimed that as a result of her circumstances, Vietnamese society will harm her, and her parents and community will ostracise and abandon her.
After her protection visa was refused by the delegate in June 2020 the applicant was advised to lodge an appeal at the AAT. She subsequently sought further legal advice from Legal Aid who referred her to another Migration Specialist who is representing her at these proceedings.
In her submission to the Tribunal the applicant, through her representative, accepts that the advice provided by [Firm 1] was flawed and incorrect and she should never had made the application. However, she trusted her lawyer. Her representative concedes that the application is vexatious and has no prospect of success, however, he argues there is a strong case to put to the Minister requesting his intervention to grant the visa.
Request to support ministerial intervention
The applicant, through her representative, sought the Tribunal’s support in seeking the Minister’s intervention to grant the applicant a visa.
The applicant was misled by her ex-partner who had indicated to her that he would lodge a partner application after their daughter was born. However, instead he told her and their daughter to leave the family home.
The applicant and her daughter are the subject of strict court orders in relation to custody arrangements and visiting rights for [Mr A], and [Miss B] is prohibited from departing Australia until May 2024.
There is strong evidence that the applicant was then given improper and incorrect legal advice and numerous points of time which led her to being unlawful for a period and for lodging a vexatious protection visa application.
The Tribunal hearing
The Tribunal clarified with the applicant that she wished to withdraw the protection claims and instead seek the support of the Tribunal in a request for Ministerial intervention.
The applicant provided the Tribunal with an “impact statement” which set out the difficulties she faced and would continue to face if she were forced to depart Australia without her child. There is a court order preventing her from taking her daughter out of Australia. Her daughter is now [age] years old and an Australian citizen by birth. The applicant said that despite the court ordered visitation rights, [Mr A] has not seen [Miss B] in a couple of months. She went on to tell the Tribunal that [Miss B] has expressed a reluctance to stay with [Mr A] because he has a friend who makes her feel very uncomfortable and follows her around. She did not claim that [Mr A] was a danger to [Miss B].
The applicant gave an account of her relationship with her ex-partner, [Mr A]. She states that he had promised that he would lodge a partner visa application after [Miss B] was born in [year]. She states that he did not want to do it before then as he needed to be certain that [Miss B] was his child. After she was born the applicant continued to press [Mr A] to lodge an application however, he continued to resist. They remained living together until December 2018 when [Mr A] asked the applicant and her daughter to leave.
The applicant explained to the Tribunal that [Mr A] had refused to lodge a partner visa because she would not commit to having more children with him. She said that she was now [working] and wanted to continue her studies, but he insisted that they have more children. She claims that [Mr A] told her that he would not sponsor her but would find another woman to sponsor who would have more of his children. As he had already sponsored one partner to Australia, he would not be able to sponsor a third.
The applicant told the Tribunal that they were also under financial pressure as she had not been working but had been looking after her daughter as well as the other two children of [Mr A]. After they separated the Child Support Agency required that he provide her with around $500 a month in child support but in the past month they had reduced that requirement to $229. She provided the Tribunal with evidence to support this claim.
The applicant told the Tribunal that after she left [Mr A]’s home she applied for passports for herself and [Miss B], believing that she would have to depart Australia. [Mr A] assisted in this endeavour however when the passports were issued and sent to his home address, he refused to give the applicant [Miss B]’s passport. Instead, he initiated court action to prevent the applicant from removing [Miss B] from Australia.
That application was finally settled in June 2019 and along with detailed custody and visitation arrangements, [Miss B] was prevented from departing Australia until May 2024. She is on a watch list at the airport.
The applicant told the Tribunal that she could not leave Australia without [Miss B] and did not know how to proceed. She approached Legal Aid, who referred her to [Firm 1], who lodged a protection visa on her behalf. Given the applicant’s circumstances it is likely that there was no other visa application option open to the applicant.
REQUEST FOR MINISTERIAL INTERVENTION
The Tribunal strongly supports the applicant’s request for the Minister to intervene to grant her a visa allowing her to remain in Australia with her Australian citizen daughter.
Had her ex-partner lodged the application as he promised at the time of [Miss B]’s birth, even if they separated prior to a decision being made, the applicant would have been granted a visa because of the fact that she shares an Australian citizen child with an Australian citizen, and there are Family Court consent orders in relation to the care of that child and an order preventing the removal of that child from Australia.
The only reason that [Mr A] did not sponsor the applicant is because she was not able to commit to having more children with him. His response to that decision by the applicant was to tell the applicant and their daughter to leave their home so that he would be free to sponsor another person who would agree to have more children with him. As he had already sponsored a partner to Australia, he would have been prevented by operation of the Migration Act from sponsoring a third partner.
The applicant is in a position where her only option is to depart Australia without her daughter. The applicant has raised her daughter on her own for over [number] years and [Miss B] has made it clear that she is uncomfortable staying at the home of her father because of his friends. Indeed, [Mr A] appears to be neglecting his parenting duties in the past several months and has not taken up his visitation rights. Furthermore, his financial support to the applicant and his daughter has more than halved in the past several months. The applicant does not have any family members in Australia.
In these circumstances, should the applicant be required to depart Australia, her daughter would find herself in the care of the State. This is not only untenable but unconscionable.
CONCLUSION
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior 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.
…

[2023] AATA 4574

20 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies