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2015144 (Refugee)

2015144 (Refugee)

Case [2021] AATA 3229 21 May 2021

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2015144 (Refugee) [2021] AATA 3229 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2015144
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jason Pennell
DATE:21 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

Statement made on 21 May 2021 at 9.52am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Christian – imputed political opinion – anti-government – failed asylum seeker – land dispute – home forcefully acquired by authorities – assaulted by gangs – Australian criminal record – involvement with people smuggler – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Liu v MIMA [2001] FCA 257
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Darboy [1998] FCA 931
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
Wang v MIMA (2000) 105 FCR 548
X v MIMA [1999] FCA 697

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 7 October 2020 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (‘protection visa’) under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 30 April 2020. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 11 December 2020 and 21 January 2021 to give evidence and present arguments. The applicant was detained at [named] Immigration Detention Centre. As a result, the hearing was conducted via video conference using the Microsoft Teams program. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2015144 (Refugee)

Details

AGLC: 2015144 (Refugee) [2021] AATA 3229
Case: [2021] AATA 3229
Decision Date: 21 May 2021

CaseChat Overview and Summary

The applicant, a citizen of Vietnam, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to fear persecution in Vietnam due to his Christian religious beliefs, which he asserted were imputed to him as an anti-government political opinion. He also relied on past experiences of his home being forcefully acquired by authorities and assaults by gangs, as well as his involvement with a people smuggler and an Australian criminal record.

The Federal Circuit Court was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, namely political opinion, should he be returned to Vietnam. This involved assessing the credibility of his claims regarding religious persecution, the alleged anti-government imputation of his beliefs, and the nexus between these factors and the harm he feared. The court also had to consider whether any adverse findings or circumstances, such as his criminal record or association with a people smuggler, were relevant to the assessment of his protection claims.

In reaching its decision, the court applied the principles established in *Minister for Immigration and Multicultural Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*. The court found that the applicant's claims regarding his religious beliefs and the imputation of political opinion were not credible. It noted inconsistencies in his evidence and a lack of corroborating material to support his assertions of persecution. The court also considered the applicant's criminal record and his involvement with a people smuggler, finding these factors did not create a well-founded fear of persecution for a Convention reason.

The court affirmed the decision under review, finding that the applicant had not established that he would be owed protection under the *Migration Act 1958* (Cth).

Orders