2101313 (Refugee)

2101313 (Refugee) [2024] AATA 2631 (26 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2101313
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Kate Chapple
DATE:26 June 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 June 2024 at 9:13am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – declined hearing invitation – requested Ministerial referral – insufficient information and evidence before the Tribunal to substantiate a referral – in a de facto relationship with an Australian citizen – pollution – applicant does not have a well-founded fear of persecution –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 351, 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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 12 November 2018 setting out the following claims (spelling and grammatical errors not corrected):
1.1.[reason applicant left Vietnam] Pollution.
1.2.[harm experienced by applicant in Vietnam] No.
1.3.[applicant’s attempt to relocate to another part of Vietnam] Yes, but everywhere is the same in Vietnam.
1.4.[what applicant thinks will happen to her if she returns to Vietnam] I will get ill such as cancer.
1.5.[reason applicant thinks she’ll be harmed or mistreated in Vietnam] The Vietnam government does not care.
1.6.[reason applicant thinks Vietnamese authorities won’t protect her] The Authorities does not care.
1.7.[whether applicant thinks she could relocate within Vietnam] Yes. I wanted to come to Australia to study to get away with the pollution.
Decision record dated 15 January 2021 relating to the delegate’s refusal decision.
Departmental case file relating to the applicant.
Application for review
Application for review lodged 5 February 2021.
On 1 March 2024, 14 May 2024 and 24 May 2024, the applicant wrote in identical terms to the Tribunal as follows:
I would like the Member to affirm my case, so that I can take my migration matter to request for Ministerial Intervention, to intervene in my case, as I am currently in a registered de facto relationship and have a common child from my relationship with an Australian Citizen, I am also pregnant another child with him.
The applicant’s case was constituted to the presiding member on 12 June 2024.
On 14 June 2024, the Tribunal wrote to the applicant as follows:
The Member notes your request for an affirm decision and referral for Ministerial
Intervention.
Section 425(1) of the Migration Act requires the Tribunal to invite the applicant to
appear before the Tribunal to give evidence and present arguments relating to the
issues arising in relation to the decision under review. Subsection (2)(b) provides that
subsection (1) does not apply if the applicant consents to the Tribunal deciding the
review without the applicant appearing before it.
Please confirm in writing that you consent to the Tribunal deciding the review without
you appearing before it to give evidence and present arguments in relation to your
application for review.
In relation to your request for referral for Ministerial Intervention, the Member invites
you to make a written submission addressing the relevant issues by 1 July 2024 for
the Member's consideration.
On 21 June 2024, the applicant wrote to the Tribunal as follows:
I would like to confirm that I consent to the Tribunal deciding the review without me appearing before it to give evidence and present arguments in relation to my application for review.
I want to request for Ministerial Intervention because I am currently in a registered de facto relationship and have two common children from my relationship with my partner, an Australian Citizen.
My partner needs me to remain in Australia to take care of our children so that he can work fulltime and support our family.
Please consider my request promptly.
On 25 June 2024, the Tribunal wrote to the applicant as follows;
The Member acknowledges your request that the Tribunal affirm the delegate’s decision to refuse the grant of a protection visa and to refer your case for ministerial intervention. The member further notes your email of 21 June 2024 in which you have confirmed that you do not wish to appear before the Tribunal to give evidence and present arguments in relation to your application for review.
A request for ministerial intervention can generally only be made by a person who is the subject of the request (ie you, the applicant) or their authorised representative. The Department may initiate a request, including where a case is referred to the Minister’s attention by the Tribunal.
The Tribunal may, however is not bound to, refer a case to the Department if the member believes the issue involved falls within the unique or exceptional circumstances described in the Minister’s guidelines on ministerial powers.
In these circumstances, the member considers there is insufficient information and evidence before the Tribunal to substantiate a referral, and recommends that you, as the applicant, are best placed to make a request for ministerial intervention directly to the Department following the issue of the member’s affirm decision in due course. The member will expressly note in the decision record that you have made a referral request, the member has decided not to refer, and that you may if you choose make a direct request to the Department.
To assist you in making a direct request, I attach a link to the Department of Home Affairs page on Ministerial Intervention that outlines the Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J).
This decision record is a record of the Tribunal’s consideration of the applicant’s claims and evidence, and reasoning leading to a decision to affirm the delegate’s refusal decision, following receipt of the applicant’s written consent to the Tribunal deciding the application for review without the applicant appearing before it to give evidence and present arguments.
Country information
The BTI Transformation Index Vietnam Country Report 2024 provides:
Vietnam has a comprehensive policy and legal framework in place to address environmental challenges. Policy documents include the Vietnam Climate Change Strategy (CCS) and the Vietnam Green Growth Strategy (GGS), both of which were signed by the prime minister. The Communist Party also issued a resolution on climate change, and there is an Environmental Protection Law. In fact, the recently revised penal code even includes a separate section on “environmental crimes.”
During COP26 in 2021 in Glasgow, Vietnam made a strong commitment to achieving net zero greenhouse gas emissions by 2050. Prior to that, in November 2020, the National Assembly amended the 2014 environmental protection law. These amendments impose responsibilities on corporations through a “polluters pay” rule, as well as requirements to utilize the best available pollution control technology. Additionally, the amendments give local communities expanded roles in conservation and supervision.
Furthermore, the law reclassifies certain types of waste as resources, which is an important step toward improving the recycling process.
While public awareness of environmental concerns and the will to regulate environmental pollution are pronounced, the enforcement of regulations and the lack of adequate monitoring mechanisms remain significant problems. As a result, government agencies and local authorities often ignore regulations in the pursuit of economic development, rendering the framework toothless. In 2022, Vietnam faced criticism from international human rights communities for arresting and jailing well-known environmental activists. Reports from international organizations indicated that some non-governmental organizations (NGOs) involved in environmental activities were even forced to close down. A prevailing sentiment among environmentalist communities in Vietnam is that it is the government’s responsibility to implement environmental policies and non-state NGOs should refrain from criticizing the government.
The Australian Government Department of Home Affairs Common Claims Vietnam (effective June 2024) provides:
Vietnamese officials interview most individuals returning to Vietnam following failed asylum efforts, however treatment is not consistent. According to the Department of Foreign Affairs and Trade (DFAT), authorities occasionally interview returnees in Vietnam, with questioning usually lasting one to two hours, aiming to gather information on potential involvement in illegal activities.¹ Despite this, some returnees have been detained for multiple days or recalled for further questioning.² Migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.³ In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and Vietnam’s Ministry of Public Security which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.⁴
1 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.30, p.33
2 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.30, p.33
3 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.30, p.33
4 'Australia and Vietnam further cooperation to stamp out people smuggling', Australia: Government of, 12 December 2016
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
The Tribunal notes the country information reports that environmental pollution is recognised by the Vietnamese government and there are laws to regulate and penalise pollution, however there are public concerns about the lack of enforcement and monitoring and the consequences of criticising the government.
The Tribunal notes the generality and sparseness of the applicant’s claims and the absence of any explanation or evidence as to how those claims relate to the applicant for the purposes of establishing a well-founded fear of persecution under the refugee criteria of the Act or a real risk the applicant will suffer significant harm under the complementary protection criteria of the Act.
The Tribunal notes the applicant claims not to have experienced harm in Vietnam.
The Tribunal considers the applicant’s exposure to potential illness due to pollution if she returns to Vietnam is borne by the Vietnamese population as a whole. It does not amount to serious harm occasioned by a state or non-state actor or individual and targeted at the applicant by reason of race, religion, nationality, membership of a particular social group, or political opinion, nor does it amount to significant harm intrinsic to which is an intent to punish or subject the applicant to ill treatment.
Given the applicant would be returning to Vietnam as a failed asylum seeker, whilst not explicit in the applicant’s claims, the Tribunal has considered it as a claim arising from applicant’s material.
The Tribunal notes the country information reports that Vietnamese authorities occasionally interview returnees in Vietnam, with questioning usually lasting one to two hours, aiming to gather information on potential involvement in illegal activities, while some returnees have been detained for multiple days or recalled for further questioning.
The Tribunal notes there is no evidence before it of the applicant having been involved in illegal activities while outside Vietnam or any other activities that would draw the adverse attention of the Vietnamese authorities.
The Tribunal considers it is possible the applicant would be interviewed by Vietnamese authorities on her return to Vietnam, however there is no evidence before it to support a finding that, as a result, the applicant would be exposed to targeted harm by the Vietnamese authorities or any non-state actor or individual.
The Tribunal considers there is no evidence before it to support a finding that if the applicant returns to Vietnam she would be exposed to harm, by cause or nature, such as to engage Australia’s refugee or complementary protection obligations.
The Tribunal is satisfied the applicant’s written claims do not raise any further protection claims requiring its consideration.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
27.1.The applicant is a non-citizen in Australia and citizen of Vietnam.
27.2.The applicant’s claims do not satisfy the refugee or complementary protection criteria set out in the applicable law.
27.3.If the applicant is returned to Vietnam, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
27.4.There do not exist 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 the applicant will suffer significant harm.
REQUEST FOR REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal notes the applicant’s request for referral for Ministerial Intervention claiming she is currently in a de facto relationship with an Australian citizen with whom she shares two children, and further that her partner needs her to remain in Australia to take care of their children so that he can work fulltime and support the family.
The Tribunal has advised the applicant that in the member’s view there is insufficient information and evidence before the Tribunal to substantiate a referral and has recommended that the applicant may make a request for ministerial intervention directly to the Department if she chooses.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.

[2024] AATA 2631

26 June 2024

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