2100304 (Refugee) - [2024] AATA 2882

2100304 (Refugee) [2024] AATA 2882 (10 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Khanh Hoang (MARN: 2015332)
CASE NUMBER: 2100304

COUNTRY OF REFERENCE: Vietnam
MEMBER:Paul Windsor
DATE:10 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 July 2024 at 10:36 am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – anti-government protests – particular social group – illegal departure – attacks on church buildings and priests – fear of detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2020 to refuse to grant the applicant a Class XE Safe Haven Enterprise) subclass 790 (Safe Haven Enterprise) 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 23 August 2020.
Previous application for a Safe Haven Enterprise visa
According to Departmental records, the applicant arrived in Australia by sea without a valid visa at the Territory of Ashmore and Cartier Islands in April 2013, on a boat from Indonesia codenamed [name]. At the time, this was thought to make him an unauthorised maritime arrival (UMA).
The Tribunal notes that the applicant previously made an application for a Safe Haven Enterprise visa on 19 June 2017.
On 23 July 2020, the Department wrote to the applicant advising him that, as a consequence of the judgement by the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447, made on 6 August 2018, he is not an UMA, as previously was thought to be the case, and his application made on 19 June 2017 is invalid and cannot be considered.[1] At the time, the Department considered that the application was invalid due to the operation of s 91K of the Act.
[1] See the Departmental file.
Accordingly, the then Minister determined under s 91L that s 91K would not apply if the applicant made a…

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 2100304 (Refugee)

Details

AGLC: 2100304 (Refugee) [2024] AATA 2882
Case: [2024] AATA 2882
Decision Date: 10 July 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Refugee Tribunal concerning a protection visa for a citizen of Vietnam. The applicant claimed he feared detention and harm by Vietnamese authorities due to his Catholic religion, his involvement in an anti-government protest in 2012, and his illegal departure from Vietnam. He also asserted he would be unable to practice his faith freely and that the police actively pursued him.

The court was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth). Specifically, the court had to consider whether the applicant had established a well-founded fear of persecution based on his religion, imputed political opinion, or membership in a particular social group, and whether he faced a real risk of significant harm if returned to Vietnam, thereby engaging Australia's complementary protection obligations.

The court considered the applicant's claims in light of the Refugee Convention and the complementary protection provisions of the Act, as well as relevant Ministerial Directions and country information. The applicant provided evidence of his religious practice, discriminatory treatment at school, attacks on churches and priests in his region, and his participation in anti-government protests. He also detailed receiving police warrants, his family's decision for him to flee, and his subsequent illegal departure from Vietnam. The court noted that the applicant feared the very authorities from whom he would normally seek protection and that relocation within Vietnam was not a viable option due to the pervasive nature of police networks.

The Tribunal's decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEClaims The applicant’s claims for protection were set out in a statutory declaration made on 16 June 2017 included with his initial Safe Haven Enterprise visa application, and replicated in the statement dated 21 August 2020 included with the current application.[6] His claims from this statutory declaration are summarised as follows:[6] See The Departmental file.·He fears that, if he was to be returned to Vietnam, he will be detained and harmed by the Vietnamese authorities because of his Catholic religion, involvement in an anti-Government protest in 2012 and because he fled Vietnam illegally. He will not be able to practise his faith freely.·He fled Vietnam because the police were pursuing him and he fears that if he returns, the authorities will continue to pursue him and will hurt him.·He has practised his Catholic religion all his life. He attended a local parish in Nghe An where he was a youth member. His uncles, [Uncle A] and [Uncle B] also attended this church.·The church youth group had weekly meetings which involved religious discussions, singing religious songs and dancing. He also attended mass on Sundays with his family.·At school he was treated differently and received harsher punishments because he was a Catholic.·The Catholic people started to have problems in Nghe An in 2012 because police began to attack the churches in their area. He doesn’t think it happened to the church he attended, but it happened to several churches in the nearby area.·In one case, police tried to use a tractor to pull part of one of the churches down. That church was about two hours’ drive from his house. Priests who tried to defend the churches were attacked. He saw a photograph that had been taken by his uncle, [Uncle B], of priests being attacked by a group of police with batons just outside a church. He heard about police coming to churches and smashing religious statues.·After these events, Catholic people in his area were very angry, so a number of protests were organised. These occurred in around June and July 2012. He joined in two of the protests and held up anti-government banners stating that what the government was doing was wrong.·About two weeks after the protest the police sent a warrant to his house asking that he report for questioning about causing a disturbance at a public place. His two uncles received similar warrants. They were scared because the police have a very bad reputation in Vietnam. ·He had heard stories from his parents and his parish priest, a man named [Father A], that the local police arrest people and then beat and torture them once they are in custody.·About a week later, he received a second warrant. His family decided that he and his uncles should flee Nghe An province to avoid being arrested. They left a few days after the second warrant arrived. ·He left his family home in Nghe An on [a date in] August 2012 and travelled to Binh Duong province with his two uncles, where they stayed at a relative’s house. He was [age] years old at the time (note: as he was born on [date], he would [been an older age then]).·His mother told him that within the first 3 months after he left to go to Binh Duong the police came to their home twice asking after him. They knew they could not stay in Binh Duong forever because eventually the authorities would find them, so they decided to leave Vietnam.·One night in March or April 2013, he and his two uncles travelled by car to the shore where they got on a boat which took them to a larger boat which then travelled to Australia, taking about [number] days. This was all organised by his uncles. He believes he arrived in Australia on approximately [a date in] April 2013.·Because he has been away, he would have been removed from his family’s Ho Khau (household registration).·The government would know he has not been in the country. He is at risk of being punished because he left Vietnam illegally.·He is also scared because of the Departmental privacy breach which may have revealed that he was in Community Detention on 31 January 2014.·He cannot seek state protection because it is the government that he fears would harm him.·He cannot relocate because the police have networks all over the country. He would find it difficult to find work outside of Nghe An province.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEClaims The applicant’s claims for protection were set out in a statutory declaration made on 16 June 2017 included with his initial Safe Haven Enterprise visa application, and replicated in the statement dated 21 August 2020 included with the current application.[6] His claims from this statutory declaration are summarised as follows:[6] See The Departmental file.·He fears that, if he was to be returned to Vietnam, he will be detained and harmed by the Vietnamese authorities because of his Catholic religion, involvement in an anti-Government protest in 2012 and because he fled Vietnam illegally. He will not be able to practise his faith freely.·He fled Vietnam because the police were pursuing him and he fears that if he returns, the authorities will continue to pursue him and will hurt him.·He has practised his Catholic religion all his life. He attended a local parish in Nghe An where he was a youth member. His uncles, [Uncle A] and [Uncle B] also attended this church.·The church youth group had weekly meetings which involved religious discussions, singing religious songs and dancing. He also attended mass on Sundays with his family.·At school he was treated differently and received harsher punishments because he was a Catholic.·The Catholic people started to have problems in Nghe An in 2012 because police began to attack the churches in their area. He doesn’t think it happened to the church he attended, but it happened to several churches in the nearby area.·In one case, police tried to use a tractor to pull part of one of the churches down. That church was about two hours’ drive from his house. Priests who tried to defend the churches were attacked. He saw a photograph that had been taken by his uncle, [Uncle B], of priests being attacked by a group of police with batons just outside a church. He heard about police coming to churches and smashing religious statues.·After these events, Catholic people in his area were very angry, so a number of protests were organised. These occurred in around June and July 2012. He joined in two of the protests and held up anti-government banners stating that what the government was doing was wrong.·About two weeks after the protest the police sent a warrant to his house asking that he report for questioning about causing a disturbance at a public place. His two uncles received similar warrants. They were scared because the police have a very bad reputation in Vietnam. ·He had heard stories from his parents and his parish priest, a man named [Father A], that the local police arrest people and then beat and torture them once they are in custody.·About a week later, he received a second warrant. His family decided that he and his uncles should flee Nghe An province to avoid being arrested. They left a few days after the second warrant arrived. ·He left his family home in Nghe An on [a date in] August 2012 and travelled to Binh Duong province with his two uncles, where they stayed at a relative’s house. He was [age] years old at the time (note: as he was born on [date], he would [been an older age then]).·His mother told him that within the first 3 months after he left to go to Binh Duong the police came to their home twice asking after him. They knew they could not stay in Binh Duong forever because eventually the authorities would find them, so they decided to leave Vietnam.·One night in March or April 2013, he and his two uncles travelled by car to the shore where they got on a boat which took them to a larger boat which then travelled to Australia, taking about [number] days. This was all organised by his uncles. He believes he arrived in Australia on approximately [a date in] April 2013.·Because he has been away, he would have been removed from his family’s Ho Khau (household registration).·The government would know he has not been in the country. He is at risk of being punished because he left Vietnam illegally.·He is also scared because of the Departmental privacy breach which may have revealed that he was in Community Detention on 31 January 2014.·He cannot seek state protection because it is the government that he fears would harm him.·He cannot relocate because the police have networks all over the country. He would find it difficult to find work outside of Nghe An province.