2015549 (Refugee)

[2024] AATA 4165

2015549 (Refugee) [2024] AATA 4165 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sam Issa

CASE NUMBER:  2015549

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mr S Norman

DATE:30 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant [the first applicant] a protection visas.

The Tribunal sets aside the decision refusing to grant a protection visa (to [the second applicant]) and substitutes a decision that the protection visa review application is no longer valid and cannot be considered.

Statement made on 30 August 2024 at 11:22am

CATCHWORDS
REFUGEE – protection visa – Vietnam – promised in marriage by family – fear of harm from family, promised husband and his family – own partner and child in Australia – consent to decision without hearing – insufficiently detailed claims and evidence – responsibility to specify particulars and provide evidence – member of family unit daughter – separate application already finalised and this application no longer valid – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 48A, 65, 424(2), 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

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 29 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be citizens of Vietnam, applied for the visas on 8 November 2017. The Department delegate decision was lodged with the Tribunal. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. By a hearing invitation letter dated 9 February 2024 (dispatched by email to the authorised recipient), the Tribunal advised the applicant mother (hereafter the applicant) it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 22 August 2024. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

6. In response to the Tribunal s.424(2) letter, and by agent email of 7 February 2023, the Tribunal was advised ‘the review applicant does not intend to submit any further supporting documentation/evidence and relies on the material presently before the Tribunal’.

7. In response to the hearing invitation letter, and by agent email of 13 August 2024, the Tribunal was also advised the review applicant requested a decision to be made on the papers.

8. As noted in the decision of the applicant’s partner (see # 1811246), and in the course of the partner’s hearing held one week prior to the applicant’s scheduled hearing, the Tribunal sought confirmation from the agent (who represented both applicants, and the present applicant was in attendance outside the hearing of her partner), that the applicant still did not wish to attend a hearing. After a short adjournment, the agent again advised the Tribunal the present applicant did not wish to attend a Tribunal hearing and her review should be considered on the papers.

9. In the circumstances, and after considering the evidence, and pursuant to s.425((2)(b) of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Membership of the same family unit:

10. As also discussed in the applicant’s partner’s decision (see # 1811246), the agent lodged a further (separate) PV application for the applicant daughter on 21 March 2018; though no other family member was included in that application. The daughter’s PV was refused by the delegate on 11 April 2022, and review was then sought by the Tribunal. However, by email of 20 February 2024, the agent advised the Tribunal ‘the review applicant [the daughter] request[ed] a decision to be made on the papers before the Tribunal’. The Tribunal was concerned about the impact of the s.48A bar, but given this request had been made by the daughter’s agent, the Tribunal proceeded to affirm the decision (see AAT # 2206463) on 5 August 2024.

11. That being said, based on the above, the Tribunal is satisfied the applicant daughter is subject to the s.48A bar. The Tribunal therefore sets aside the decision refusing to grant a protection visa (to [the second applicant]) and substitutes a decision that her protection visa review is no longer valid and cannot be considered.

    The applicant’s claims:

12. The applicant claimed to be part of the KINH ethnic group (being the majority ethnic group in Vietnam[1]), and that her religion was ‘Free Reformed’.[2] The applicant also claimed to have never married,[3] and that her mother, father and elder sister continued to reside in Vietnam.[4] The applicant claimed to have been born in Phu Tho Vietnam - and to have resided there between [Date] and December 2008 - and that between January 2009 and July 2013 she resided in Hai Ba Trung, Hanoi.[5]

    [1] UK Home Office, Guidance – Country Policy and Information Note: Ethnic and Religious Groups, Vietnam, February 2022, [1.2.1].

    [2] PDF – p.16 (’PDF’ refers to the merged Department file on the Tribunal CASEMATE database).  

    [3] PDF – p.8.

    [4] PDF – from p.9.

    [5] PDF – p.12.

13. In the Protection visa (PV) form, and as recorded by the delegate, the applicant claimed:

    ·     Her family had promised her in marriage to another man (not her current partner in Australia and with whom she has had a biological daughter)

    ·     If she returned to Vietnam, she fears she would be harmed by her family, and the family of her promised partner

    ·     She said the family of her promised partner is powerful and/or the promised partner is a powerful and influential man in his town

    ·     She feared that if forced to marry, her daughter may be killed in order to maintain the reputation of the family of the promised partner, and also to facilitate the marriage to her promised partner

14. In her statutory declaration dated 7 November 2017,[6] the applicant claimed:

    [6] PDF – from p.29.

    ·     in March 2013, her mother spoke to her about a family who lived in the south of Vietnam. The father of that family had served in the military with the applicant’s own father - he had saved her father’s life during the war, and this was known by the entire community

    ·     the applicant’s mother then referred to the son of that family who was then [Age] years of age. The son wished to marry the applicant. The applicant’s mother told the applicant she had no choice but to accept the arrangement, but the applicant refused – due to the experiences of her elder sister who had entered an arranged marriage and was unhappy

    ·     the applicant told her mother she still wished to travel abroad and study, and her father told his former colleague about this. It was agreed that when the applicant returned from her studies she would marry the son. The applicant agreed as she knew that if she did not do so she would not have been allowed to travel to Australia

    ·     the son was happy as he understood the applicant was to study English in Australia and this would assist in the family business

    ·     the applicant arrived in Australia [in] August 2013 and was in close contact with her family in Vietnam – though she could not speak about her social life in Australia. She subsequently met the ‘right person’ in Australia, and in May 2017 she fell pregnant. She proposed to keep the child but was too afraid to tell her parents

    ·     in July 2017, the applicant was contacted by her mother to discuss wedding arrangements. It was assumed the applicant’s studies would soon be completed and the applicant’s family were being pressured to ensure the applicant married the aforementioned son (in December 2017). At that time the applicant told her mother she was [pregnant], that she proposed to keep the child, and that she never wished to marry the son so that all arrangements should be cancelled

    ·     the applicant’s mother told the applicant to have an abortion and return to Vietnam. It was claimed the promised partner’s family and the son, were influential and powerful in their town and well-respected. The applicant was told that if she did not do so, her family’s reputation and her own life may be at risk. The applicant hung up the phone

    ·     several minutes later the applicant’s father called repeatedly and she eventually answered. She was again told to have an abortion and cease the relationship with her Australian partner. The applicant refused and was ‘reminded how serious the situation was’

    ·     later the applicant’s mother again called and told her they had shared the news with the family of the promised partner. The father of the promised partner had travelled to the north of Vietnam and gave the applicant’s father until the end of that year to accept his son’s proposal

    ·     the applicant’s sister subsequently advised her not to return to Vietnam unless she was willing to proceed with the marriage. The sister said that if the applicant returned with the child she may be killed by the promised partner in order to ‘maintain his image’

    ·     the applicant then said that once the promised partner realised she had not returned by the end of the year (2017), her family may be subject to more threats or they may be harmed. The applicant also feared that she personally would be harmed or kidnapped

    ·     the applicant feared it would not be possible for her to relocate within Vietnam as the family of the promised partner is influential and she could not relocate as a single woman with her child. She also does not believe the Vietnamese authorities can protect her

    Assessing the applicant’s claims:

15. The applicant lodged a photocopy of the bio-data page of her Vietnamese passport[7] with the Department. Based on this evidence, the Tribunal accepts the applicant is a citizen of Vietnam, and that Vietnam is her receiving country. However, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

    [7] PDF – p.28.

16. That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that she was promised to another person in marriage; that she refused that promised marriage; and/or there were any related consequences as she had claimed.

17. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

18. Importantly, and in relation to protection claims, it is also ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[8]

    [8] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

19. That said, based on the claims she has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are 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 she will suffer significant harm.

20. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in Vietnam.  

    Finding:

21. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion 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

23. The Tribunal affirms the decision not to grant [the first applicant] a protection visas.

24. The Tribunal sets aside the decision refusing to grant a protection visa (to [the second applicant]) and substitutes a decision that the protection visa review application is no longer valid and cannot be considered.

    Mr S Norman
    Member