2114188 (Refugee)

[2022] AATA 545

2114188 (Refugee) [2022] AATA 545 (11 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2114188

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Phoebe Dunn

DATE:11 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 January 2022 at 9:07am

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – protested against inadequate compensation for compulsory acquisition of parents’ land – beaten and locked up – visa and criminal history – student visa cancelled, conviction, imprisonment and immigration detention – application completed by friend without applicant’s knowledge of contents – claims retracted at hearing – fear of serving remainder of sentence in home country – sentence now completed and no fear of returning – application for bridging visa refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 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 17 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 1 June 2021. The delegate refused to grant the visa on 17 September 2021.

3. The applicant appeared before the Tribunal by video on 23 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The hearing was held during the COVID-19 pandemic and the Tribunal determined it was appropriate to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant, who was in immigration detention. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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, which are extracted in the attachment to this decision.

9. 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.

   Identity

10. The applicant provided a copy of his Vietnamese passport to the Department.

11. Based on this information and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of Vietnam, which is also the receiving country.

    Background

12. The applicant arrived in Australia [in] March 2013 on a valid student visa issued on 27 February 2013. The applicant studied English from 1 April 2013 to 15 December 2015.

13. The applicant’s student visa was cancelled on 15 June 2016.

14. The applicant was convicted of drug offences in Australia and incarcerated in [a] Correctional Centre from [October] 2020.

15. The applicant has been in [immigration detention] since 28 September 2021, following the end of his prison term.

16. The applicant has a current passport issued [in] 2018 valid to [2028].

    Claims

17. The applicant made the following claims on his protection visa application:

    a.    He left Vietnam because his father and he were persecuted by corrupt government officers.

    b.    His parents had 1,000 hectares of land. The government wanted to build a local government house and compulsorily acquired the land but did not give his parents a reasonable price. They only received one quarter of the value of the land.

    c.     He and his father protested about the corruption of his family’s land. They were beaten severely and locked up for a few weeks. His arms were broken and he received lots of bruises on his face.

    d.    He sought help from more senior government officials but was ignored and told that they were busy and in meetings.

    e.    He tried to fly to other states but he could not live in a new state for a long time as they always found out about his location and told their colleagues to cause trouble for him. They tried to pick a fight, stopped him from going to the supermarket and threatened the landlord to ask him to leave.

    f.   He fears he will be persecuted, arrested and charged with offences that he did not commit. All he ever did was write complaints about the corruption. They would beat him up and stop him from living in peace as he was the eldest son in the family and that is why his name is on the complaints letter.

    g.    The authorities would not protect him because his land is worth so much and they only got a quarter of the value of the land. If they protect him they will have to admit that they had robbed him.

    h.    He can’t move anywhere else in Vietnam because wherever he would go they would find him and he could not make a peaceful living.

    i.   His wife arrived in Australia by boat and they have a daughter together born on [Date]. He wants to reunite with his wife and baby.

18. At the hearing, the Tribunal asked the applicant if he had completed the protection visa application himself or if someone had helped him. The applicant gave evidence that a friend who was outside in the community helped him to fill out the form. I asked the applicant to confirm that everything in the application was true and correct and invited the applicant to correct any errors. In response, he stated that he did not know what was in the form as he hadn’t completed the form. The applicant stated that he had told a friend that he was scared to return to Vietnam because he was worried he would have to serve his sentence in jail in Vietnam. He stated that this was the background he had given his friend. The Tribunal asked the applicant if his friend had read the contents of the application to him before it was submitted so he could confirm the details of his application. The applicant stated that he did not and he was not sure what was in the application. He stated that at the time this occurred he was in criminal detention and he wasn’t sure how long he had left to serve in jail and he was afraid that if he went back to Vietnam he would have to serve the rest of his sentence in a jail in Vietnam. He stated that once he had served his sentence and released from jail he was no longer scared to return to Vietnam.

19. The Tribunal invited the applicant to provide further details. The applicant stated that he wants to be able to go into the community to get his affairs together before leaving Australia with his wife and child. He stated that he had signed a form that he would voluntarily leave Australia. He repeated that he was afraid because he did not understand the link between this country and Vietnam and thought that they would transfer him to prison in Vietnam for the crime he had committed in Australia. He said that is why he asked his friend to help him submit a protection visa application because he was scared of going to prison in Vietnam. He repeated that now he has completed his sentence he is no longer afraid to go back to Vietnam and was happy to do so.

20. The Tribunal asked the applicant if he was retracting his claims in his protection visa application. The applicant confirmed he was retracting his claims. The Tribunal stated that it wished to ensure that the applicant was retracting all his claims in his protection visa application and in order to ensure that was the case it would read out all of the claims and ask the applicant to confirm whether he wished to retract all of the claims. The applicant agreed to do so.

21. The Tribunal read to the applicant each of the applicant’s claims listed in his protection visa application as outlined in paragraph 17 of this decision. The Tribunal invited the applicant to confirm whether he wished to retract each of the claims. In response, the applicant stated that he was very frustrated and that he had never heard of any of the claims, that he knew nothing about it and that it had all been made up. The applicant confirmed that he retracted all of the claims. The applicant also stated that all of the information that was included in his claims was incorrect and not true.

22. The Tribunal asked the applicant if there was any other basis on which he feared returning to Vietnam or if he had any other claims. In response, the applicant stated that he did not fear returning to Vietnam. He stated that about two months ago he intended to lodge an application for a bridging visa to enable him to go out into the community to organise his belongings and make arrangements for him and his wife and child to return to Vietnam. He stated that he had already signed a statement to say that he was willing to return home voluntarily. He stated that he just wanted a week or so or a few days to say goodbye to his friends and organise his belongings. He stated that his application for a bridging visa had been refused and he did not see the point in appealing that decision and was happy to go home directly.

23. The Tribunal asked the applicant to confirm its understanding that the applicant initially feared returning to Vietnam because he believed he would have to serve his prison sentence there, but since he had served his sentence no longer had any fear of returning to Vietnam. The applicant so confirmed. The Tribunal asked the applicant to confirm whether he retracted all the claims in his protection visa application and that he did not have any new claims and did not have any fear of returning to Vietnam for those reasons or for any reason. The applicant so confirmed.

24. The Tribunal asked the applicant if he wished to bring anything else to the attention of the Tribunal. The applicant said he did not. The applicant thanked the Tribunal for its time and understanding. The applicant stated that he did not have any intention to put any misleading information to the Tribunal and did not know what his friend had put in the protection visa application. The applicant apologised to the Tribunal and stated that he wished to return to Vietnam as soon as possible.

    Mandatory considerations

25. 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

26. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Vietnam and, if not, whether 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 he will suffer significant harm.

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

28. As outlined above, at the hearing, the applicant retracted all the claims made in his protection visa application and stated that he did not have any new claims. On the basis of the information given by the applicant in oral evidence at the hearing, the Tribunal makes the following findings:

    a.    The applicant did not leave Vietnam because he and his father were persecuted by corrupt government officers.

    b.    The applicant’s parents did not have 1,000 hectares of land and that land was not compulsorily acquired by the government. It follows that the applicant and his family did not receive any compensation for any compulsory acquisition of land, whether reasonable or otherwise.

    c.     The applicant and his father did not protest about the corruption of his family’s land. The applicant and his father were not beaten severely and locked up for a few weeks. The applicant did not have his arms broken and did not receive a lot of bruises on his face.

    d.    The applicant did not seek help from more senior government officials and was not ignored by them.

    e.    The applicant did not try to fly to other states for these reasons or for any other reasons. No trouble was caused to the applicant for these reasons or any other reasons. No officials tried try to pick a fight with him and no one stopped him from going to the supermarket and no one threatened the landlord to ask him to leave for this or for any other reason.

    f.   The applicant will not be persecuted, arrested or charged with offences that he did not commit. The applicant did not write complaints about the corruption. It follows that the applicant will not be beaten up and stopped from living in peace as a result of writing a complaints letter.

    g.    Neither the applicant nor his parents owned land that was compulsorily acquired by the government. It follows that the applicant was not robbed by the authorities in relation to this or any other land, and there is no reason that the authorities would not protect him on the basis that they would have to admit that they had robbed him because his land is worth so much and they only got a quarter of the value of the land, or for any other reason.

    h.    It follows further that the applicant will not be found by the authorities if he moves anywhere in Vietnam and will not be prevented by the authorities from making a peaceful living for this or any other reason.

    i.   The applicant will not have to serve any of his Australian prison sentence in a Vietnamese prison.

    j.   The applicant will not be persecuted if he returns to Vietnam for these reasons or for any other reason.

29. On the basis of these findings:

    a.    The Tribunal is not satisfied that the applicant has a well-founded fear of persecution if he returns to Vietnam now or in the foreseeable future on any of the grounds set out in his protection visa application, as a returnee asylum seeker, as a person who has to complete an Australian prison sentence in a Vietnamese prison or for any other reasons set out in s 5J(1)(a) of the Act;

    b.    The Tribunal is not satisfied that there is a real chance that, if the applicant is returned to Vietnam, the applicant would be persecuted for reasons set out in s 5J(1)(a) of the Act; and

    c.     The Tribunal is not satisfied that the applicant is a refugee in accordance with s 5H(1) of the Act.

30. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

31. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). On the basis of the applicant’s evidence at hearing and the Tribunal’s findings above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

32. There is no suggestion that 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

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Phoebe Dunn
    Member

    
    

    ATTACHMENT - Extract 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.

    …