2010674 (Refugee)

[2022] AATA 845

2010674 (Refugee) [2022] AATA 845 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010674

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Lilly Mojsin

DATE:9 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 9 February 2022 at 2.00 pm

CATCHWORDS

REFUGEE – Protection visa – Vietnam – decision made on papers – applicant’s request for ministerial referral – particular social group – single mothers – fears harm from family due to single mother status – no evidence of child – no evidence of relationship status or father of child – unable to refer to minister – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 425, 441A, 426A, 499

Migration Regulations 1994

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 June 2020 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 10 October 2019. The delegate refused to grant the visa on the basis that there was not a real chance or a real risk the applicant would suffer serious or significant harm on her return to Vietnam, within a reasonably foreseeable future.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the Application for Review.

4. On 21 September 2021 the Tribunal wrote to the applicant, at her address for service, advising her that it appeared that she had not currently provided her telephone number to enable the AAT to consider her case for a video or phone hearing. She was asked to provide her telephone number within 7 days of receiving the email correspondence.

5. The applicant, on 27 September 2021, responded to the Tribunal stating:

   I wish to make a request for Ministerial Intervention and kindly asks the Administrative Appeals Tribunal to affirm my application for review and apply the matter to the Minister.
   
   The grounds for Ministerial Intervention is that I have my Australian citizenship daughter, [Child 1] (DOB: [deleted]). I would like to apply subclass 143 onshore to stay in Australia and take care of my daughter.

6. On 9 December 2021 the Tribunal wrote to the applicant advising her that the Tribunal had considered the material before the Tribunal but was unable to make a favourable decision on that information alone. The applicant was invited, pursuant to s425 of the Act, to appear before the Tribunal on 19 January 2022 at 9.30 am. The invitation stated that the hearing would be held by video conference. The hearing invitation also stated that if the applicant was not able to attend the hearing, the applicant should advise the Tribunal as soon as possible. The hearing invitation also advised the applicant that if the applicant does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal. The applicant did not respond to the Tribunal’s invitation for the hearing.

7. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. I find the hearing invitation that was sent to the applicant's email address for service was given by the applicant to the Tribunal. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given.

9. In these circumstances, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

   Criteria for a protection visa

10. See Annexure A

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant, who was born in Hanoi, arrived in Australia in 2013 as the holder of a subclass TU-573 Student Visa.

12. The applicant fears harm in Vietnam on account of her membership of a Particular Social Group (PSG) as a “Single mother in Vietnam”.

13. In her PV application the applicant claims that she cannot return to Vietnam because she will be killed by her relatives as a result of being a single mother. The applicant claims that her relatives will hang her to death and the Vietnamese government does not have any policies to protect the applicant. She also stated that she was pregnant and that she had a child – [Child 1] – born [deleted].

    REASONS AND FINDINGS

14. The applicant's identity has been accepted by the Department in her visa application. On the basis of her Vietnamese passport, I accept that the applicant is a national of Vietnam and is not a national or citizen of any other country. I accept that she does not have a right to enter and reside in any country other than Vietnam. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Vietnam is the applicant's “receiving country” for the purposes of s.36(2)(aa).

15. 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 the 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.

16. The applicant was put on notice that the department did not accept her claims. The applicant asked that the Tribunal decide her application and affirm her application, seeking instead Ministerial Intervention.  The Tribunal advised the applicant that the Tribunal but was unable to make a favourable decision on that information alone and invited the applicant to a Tribunal hearing. The applicant did not attend the hearing therefore I am unable to explore the applicant’s claims or her request for Ministerial intervention.

17. The applicant has made no claims of suffering any serious harm in Vietnam, for a refugee reason and none is suggested by the evidence. I find therefore that the applicant has not suffered serious harm in Vietnam.

18. I must assess whether there is a real risk or a real chance the applicant will suffer serious or significant harm within a reasonably foreseeable future in Vietnam, on her return.

19. The applicant has not provided any information about her children born in Australia, nor any birth certificate for her child/children. She claimed in her PV application she was pregnant, and she had a child, but has made no claims regarding the then unborn child. Therefore, I am unable to accept that the applicant’s child/children is/are an Australia citizen or that the applicant is an unwed or single mother. She has not provided any details about the father of her child/children and his situation. Therefore, I do not accept that the applicant is unwed, single or a member of a particular social group “Single mother in Vietnam”.

20. The applicant has not provided any other information to the Department or to the Tribunal about her circumstances or her fear of harm from her relatives, other than to state that being separated from her husband and being pregnant now opposes her relatives moral beliefs. She does not state who her relatives are, other than to state that the person responsible is the leader of her clan. She does not state why the Vietnamese authorities would not protect her from harm from these relatives. I am not satisfied that the applicant fears harm from her relatives.

21. The applicant is an ethnic Vietnamese, she does not have any religion. I note that the applicant has not provided any information why, as a single mother, she would be killed by her relatives or why the Vietnamese government would not protect her. I have no independent information before me to suggest that the Vietnamese government does not provide protection for its citizens or mothers.  Without further information from the applicant, I do not accept that the applicant will suffer serious harm in Vietnam within a reasonably foreseeable future. 

22. I have considered the applicant’s claims singularly and cumulatively. I find that the applicant faced no serious harm in the past for a refugee reason and I am not satisfied the applicant faces a real chance of serious harm upon return to Vietnam for a refugee reason, ie. for reasons outlined in s.5J(1) of the Act, within a reasonably foreseeable future. I am satisfied that the applicant does not have a profile that would cause her to be of any interest to the authorities.

23. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(a) of the Act. 

24. As stated above, I reject the applicant’s claim she has suffered persecution or any harm in Vietnam.  The applicant is an ethnic Vietnamese woman. She did not attend a Tribunal hearing and I have been unable to explore her claims. She has a child/children born in Australia. She has provided no evidence to the Tribunal of the circumstances of her current marital status or details about the father/fathers of her child/children. I am unable therefore to ascertain if the child/children she refers to are Australian citizens.

25. The applicant's claims for complementary protection, ie. whether the applicant will suffer significant harm on return to Vietnam, are the same claims as those put forward in relation to her refugee criterion claims. I am not satisfied the applicant suffered any harm in Vietnam. Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant, an ethnic Vietnamese woman and mother of a child/children born in Australia, being removed from Australia to Vietnam that there is a real risk the applicant will be arbitrarily deprived of her life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

26. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act. 

27. 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).

    Ministerial Intervention

28. The applicant has sought Ministerial Intervention. The applicant has not provided any detailed reasons for the Tribunal to be able to assess whether or not the applicant’s circumstances meet the Minister’s Guidelines.

29. The Tribunal is not able to agree to the request.

    CONCLUSIONS

30. 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).

31. 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.

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

    DECISION

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

    Lilly Mojsin
    Member

    ANNEXURE A

34. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

35. 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.

36. 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).

37. 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.

38. 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

39. 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.

    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.

    …