2108722 (Refugee) - [2022] AATA 2514

2108722 (Refugee) [2022] AATA 2514 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Timothy Haines
CASE NUMBER:  2108722
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nathan Goetz
DATE:6 June 2022
PLACE OF DECISION:  Sydney
The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 June 2022 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – complementary protection – significant harm from compulsory detention as methadone user or lack of treatment for physical and mental health conditions – returnee after significant period abroad and capacity to subsist – arrived on humanitarian visa and application made after permanent visa cancelled – extensive criminal history, imprisonment and mental health treatment – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
GBV18 v MHA [2020] FCAFC 17
GLD18 v MHA [2020] FCAFC 2
Hands v MIBP [2018] FCAFC
NBMZ v MIBP [2014] FCAFC 38
SZRSN v MIAC [2013] FCA 751
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review applicant by registered migration agent 0301422.
BACKGROUND
The applicant identifies as a [age]-year-old male who was born in (then) South Vietnam. The applicant arrived in Australia [in] August 1985 holding a special humanitarian programme visa. This was a permanent visa.
On 27 January 2005 the Department commenced a cancellation of the applicant’s Class BF Transitional permanent visa under s 501 of the Act. On 11 May 2005 the applicant’s visa was not cancelled.
On 15 January 2020 the Department commenced another cancellation of the applicant’s BF Transitional permanent visa under s 501 of the Act. The applicant’s visa was cancelled on 25 May 2020. On 12 June 2020, the applicant applied for revocation of the cancellation. On 21 September 2020 the cancellation was not revoked. On 28 September 2020, the applicant commenced review of the non-revocation decision with the Tribunal. On 14 December 2020 the Tribunal affirmed the decision.
On 26 February 2021 the applicant applied for a protection visa.
At the Tribunal hearing, the Tribunal raised the fact that there had been a two-month delay in applying for the protection visa following the decision to cancel his previous visa being affirmed. The Tribunal raised this delay because delay in applying for a protection visa can demonstrate that the applicant did not have a genuine fear of serious harm in Vietnam or that there was no risk to the applicant of significant…

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 2108722 (Refugee)

Details

AGLC: 2108722 (Refugee) [2022] AATA 2514
Case: [2022] AATA 2514
Decision Date: 6 June 2022

CaseChat Overview and Summary

The applicant, a male born in South Vietnam, sought review of the Tribunal's decision to affirm the refusal of his protection visa application. The applicant had arrived in Australia in 1985 on a special humanitarian programme visa, which was a permanent visa. His permanent visa was cancelled in 2020, and following the unsuccessful application for revocation of this cancellation, he applied for a protection visa. The Tribunal had previously affirmed the visa cancellation decision, and the applicant's subsequent protection visa application was refused by a delegate. The applicant then sought review of this refusal by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) or (aa) of the *Migration Act 1958* (Cth). This required the Tribunal to consider whether the applicant was a refugee due to a well-founded fear of persecution, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Vietnam, he would suffer significant harm. The Tribunal also considered whether the applicant was a member of the same family unit as a person who met these criteria, as per sections 36(2)(b) and (c).

The Tribunal considered extensive country information regarding Vietnam and the applicant's personal circumstances, including his significant criminal history, periods of imprisonment, and claims of past persecution. The Tribunal noted that the applicant did not claim to be a member of the same family unit as a person who satisfied the criteria for a protection visa. Therefore, the Tribunal concluded that the applicant did not satisfy the criteria under section 36(2)(b) or (c). The Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in the review applicant by registered migration agent 0301422.BACKGROUND The applicant identifies as a [age]-year-old male who was born in (then) South Vietnam. The applicant arrived in Australia [in] August 1985 holding a special humanitarian programme visa. This was a permanent visa. On 27 January 2005 the Department commenced a cancellation of the applicant’s Class BF Transitional permanent visa under s 501 of the Act. On 11 May 2005 the applicant’s visa was not cancelled. On 15 January 2020 the Department commenced another cancellation of the applicant’s BF Transitional permanent visa under s 501 of the Act. The applicant’s visa was cancelled on 25 May 2020. On 12 June 2020, the applicant applied for revocation of the cancellation. On 21 September 2020 the cancellation was not revoked. On 28 September 2020, the applicant commenced review of the non-revocation decision with the Tribunal. On 14 December 2020 the Tribunal affirmed the decision. On 26 February 2021 the applicant applied for a protection visa. At the Tribunal hearing, the Tribunal raised the fact that there had been a two-month delay in applying for the protection visa following the decision to cancel his previous visa being affirmed. The Tribunal raised this delay because delay in applying for a protection visa can demonstrate that the applicant did not have a genuine fear of serious harm in Vietnam or that there was no risk to the applicant of significant harm as a result of his removal from Australia. The explanation provided at the Tribunal hearing was that the applicant was hospitalised during this period and that, as a prisoner under sentence, he did not have the same freedom to efficiently attend to his migration matters as would a person in the community. A subsequent submission from the applicant’s representative noted that there was discussion between the applicant and his representative about whether to lodge judicial review of the Tribunal decision of 14 December 2020 or lodge a protection visa. Having reflected on that matter, the Tribunal is satisfied that nothing adverse can be drawn against the applicant concerning the timing of his protection visa. On 24 June 2021 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act. On 4 July 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant him the protection visa. On 20 January 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing scheduled to commence at 10:30am on 4 February 2022. The applicant was invited to appear at a Tribunal hearing to give evidence and present arguments relating to the issue arising in relation to the decision under review because the Tribunal was unable to make a decision favourable to the applicant on the material it had. As the applicant was in criminal custody and the prison where the applicant was being held did not have capacity for an audio-visual link, the Tribunal determined that a telephone hearing was appropriate.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no evidence that the applicant is 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)(b) or (c).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Nathan GoetzMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

The most recent Department of Foreign Affairs and Trade Country Information Report on Vietnam was published on 11 January 2022. Where relevant, the Tribunal has referred to the information contained in that report in this Decision Record.CONSIDERATION The Tribunal has considered the relevant contents of the delegate file, the Tribunal file, the submissions and documents submitted by the applicant, and what was said at the Tribunal hearing. According to the applicant’s protection visa application form, the applicant is known both as [the applicant] and [Alias 1]. He was born in Saigon, Vietnam. He claims Vietnamese citizenship and does not claim to have a right to enter and reside in a third country (that is, a country other than Vietnam and Australia). He was in a relationship from 1 February 1987 until 31 December 1998 and is now separated. He stated in the protection visa application form that he left Vietnam in 1985 because of the communist takeover. After a period in jail following an attempted escape, he was forced to spend time on the streets, having no support and no prospects of employment or safety, with a total lack of government support and loss of his official identity. He wrote that escape was the only option because the country was in complete turmoil following the Vietnam war. The communists were targeting anyone who was known not to sympathise with them. The applicant claimed that the communists cancelled his identity documents after his release from prison and that meant he could not get any accommodation, employment or assistance. He detailed that he last arrived in Australia [in] August 1985 at Darwin, having left Vietnam from Ho Chi Minh City. He departed Vietnam ‘illegally’ by boat to [a] Camp in [Country 1]. He entered Australia holding a SHP K4671 visa which was issued at the refugee camp in [Country 1]. He was assessed for refugee status by the UNHCR and he was in a refugee camp from [December] 1984 to [August] 1985. He has not travelled to any other country in the last 30 years. The form also identified his current address as [named] Prison, South Australia. He detailed his family members as his ex-partner [Ms A], his mother [Ms B], his brother [Mr C], his brother [Mr D], his sister [Ms E], and [Ms F] as the partner of his second son. He declared that he had been found guilty of a crime and attached his criminal history. The criminal history as detailed in that attachment was as follows:· [Magistrates’ Court 1] [in] January 1991 he was convicted and sentenced to a bond for cultivating cannabis.· [Magistrates’ Court 2] [in] September 1991 he was convicted and sentenced to a bond for theft of a motor vehicle.· [County Court 1] [in] November 1991 he was convicted and sentenced to suspended imprisonment for recklessly causing serious injury.· [Magistrates’ Court 2] [in] June 1992 he was convicted of attempted theft, two charges of theft, and burglary and he was sentenced to 6 months imprisonment.· [Magistrates’ Court 1] [in] July 1992 he was convicted of two charges of burglary, theft possession of a drug of addiction and sentenced to 3 months imprisonment. He was also found guilty of breaching a previous suspended sentenced and the suspended sentenced was partially restored.· [Magistrates’ Court 1] [in] May 1994 he was convicted and sentenced for shop-theft and imprisoned for 1 month.· [Magistrates’ Court 1] [in] August 1996 he was convicted and sentenced for two charges of trafficking heroin, theft of a motor vehicle, wilful damage, unlawful possession, possession of heroin, possession of a regulated weapon and use heroin. He received a total effective sentenced of 9 months imprisonment wholly suspended for 2 years and fined a total of $500.· [Magistrates’ Court 2] [in] April 1997 he was convicted of theft, burglary, criminal damage, two charges of possession of a drug of dependence, criminal damage, possess heroin, use of a drug of dependence, resist police or person assisting police, use heroin, fail to answer bail, and loitering. He received a total sentence of 12 months imprisonment wholly suspended for 2 years.· [Magistrates’ Court 2] [in] April 1997 he was convicted of burglary, theft, going equipped to steal/cheat and use of a drug of dependence. He was sentenced to 6 months imprisonment.· [Magistrates’ Court 3] [in] January 2000 he was convicted and sentenced to 12 months and 109 days imprisonment for attempted theft, possession of property being proceeds of crime, interfering with a motor vehicle and loiter with an intent to commit an indictable offence. He was convicted and discharged without penalty for failing to answer bail and using heroin. A non-parole period was set for 5 months.· [Magistrates’ Court 3] [in] January 2000 he was convicted and fined for being a known thief loitering in a public place.· [Magistrates’ Court 1] [in] June 2000 he was convicted and sentenced to 12 months, 9 days imprisonment for aggravated burglary, burglary, three thefts, attempted burglary, possession of property being the proceeds of crime, intentionally damaging property and possession of a regulated weapon with a non-parole period of 6 months.· [Magistrates’ Court 1] [in] August 2000 he was convicted and sentenced to 4 months imprisonment for burglary and theft.· [Magistrates’ Court 1] [in] March 2002 he was convicted and sentenced to community work for seven charges of interfering with a motor vehicle.· [Magistrates’ Court 1] [in] March 2003 he was convicted and fined for theft of a motor vehicle, failing to answer bail and possession of heroin.· [Magistrates’ Court 1] [in] October 2003 he was convicted and imprisoned for eleven charges of burglary, eleven charges of theft, three charges of aggravated burglary, attempted burglary and two charges of theft. He was convicted and fined for failing to report to police where an owner was not present following a car accident.· [Magistrates’ Court 1] [in] October 2005 he was convicted and imprisoned for possessing heroin and possessing cannabis. He was also convicted and discharged without penalty for using cannabis.· [Magistrates’ Court 1] [in] September 2008 he was convicted and fined for two charges of theft and two charges of failing to answer bail.· [Magistrates’ Court 1] [in] March 2011 he was convicted and sentenced an intensive correction order for three charges of burglary, attempted burglary and failing to answer bail.· [Magistrates’ Court 1] [in] August 2013 he was convicted and fined from possession of a drug of dependence and failing to answer bail.· [Magistrates’ Court 4] [in] March 2019 he was discharged without penalty for failing to comply with a bail agreement.