2116975 (Refugee)

[2021] AATA 5070

2116975 (Refugee) [2021] AATA 5070 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2116975

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:David McCulloch

DATE:20 December 2021

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

Statement made on 20 December 2021 at 8:56am

CATCHWORDS

REFUGEE – protection visa – Vietnam – applicant convicted of drug offences in Australia – fear of physical harm – economic wellbeing – fear of detention – request for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 499, 501J
Migration Regulations 1994, r 1.12; 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.

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 15 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claims to be a citizens of Vietnam, applied for the visa on 16 September 2021. The delegate refused to grant the visa.

3. The first named applicant (‘the applicant’) is currently in [a named] Detention Centre.

4. The applicant was invited to attend the hearing of the Tribunal on 23 December 2021 at 9.30 am. A response to the hearing invitation was received indicating that the applicant would not attend the hearing.

   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.

10. Sections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouse and dependent children.

11. The Tribunal is satisfied on the evidence that the second named applicant (‘applicant son’) is the child of the applicant pursuant to reg 1.12(2)(b)(i) and therefore both are members of the same family unit.

    Mandatory considerations

12. 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. The Tribunal has before it the DFAT Country Information Report – Vietnam, 13 December 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The following visa history of the applicant is extracted from the delegate’s decision record:

28/05/2012	[Student] visa granted offshore
[June 2012]	Arrived in Australia on Student visa
[January 2013]	Departed Australia on Student visa
[February 2013]	Arrived in Australia on Student visa
29/08/2013	[Partner] visa application commenced
30/08/2013	Bridging Visa A (BVA) granted
07/03/2014	Student visa ceased; [Partner] visa granted
[February 2015]	Departed Australia on Temporary Partner visa
[March 2015]	Arrived in Australia on Temporary Partner visa
[October 2016]	Departed Australia on Temporary Partner visa
[Later in October 2016]	Arrived in Australia on Temporary Partner visa
29/11/2016	[Permanent Partner] visa application refused
08/12/2016	Temporary Partner visa ceased; Administrative Appeals Tribunal (AAT) review commenced on permanent partner visa refusal
20/12/2018	Review outcome – Review set aside, remit with direction
08/01/2019	BVA cancellation commenced on s 501 character grounds
[June 2019]	In criminal detention for criminal offences
04/03/2020	Permanent Partner visa refused on s 501F(2); BVA cancelled
25/06/2020	Cancellation not revoked on s 501CA(4)
01/07/2020	AAT review commenced on non-revocation of BVA cancellation
[August 2020]	Convicted of supply of prohibited drugs and sentenced to four years and six months imprisonment, non-parole period of two years and three months
16/01/2021	Criminal detention Bridging Visa E (BVE) granted
08/09/2021	Criminal detention BVE ceased
16/09/2021	AAT affirmed non-revocation of BVA cancellation; XA-866 (Permanent Protection – PPV) visa application commenced
[Later in September 2021]	Released from criminal detention, Detained under s189(1) and transferred to immigration detention

1. The following information is apparent from the application for protection forms. The applicant was born on [date] in Hai Phong, Vietnam. The applicant is of Vietnamese ethnicity who speaks, reads and writes both Vietnamese and English. The applicant has never married but is separated. The applicant has one child, born on [date], who resides in Australia. The applicant’s parents and brother reside in Vietnam, and the applicant is in contact with her parents. The applicant lived at one address in Hai Phong, Vietnam, from birth until January 2012. The applicant attended an English course in Sydney, Australia, from January 2012 until 2013. The applicant did not declare any other previous education. The applicant declared no employment history and did not declare the way in which she supported herself or her child financially. The applicant was convicted of drug‑related offences and served a term of imprisonment from [June] 2019 to [June] 2021.

2. On 24 September 2021, the Department wrote to the applicant’s migration agent, requesting a statement of claims from the applicant. The agent responded on the same day by way of a letter as follows (not corrected for spelling or grammar):

   We refer to your letter and accompanying request for Protection Claims from the Applicants in this visa application, [named]. As [the applicant] is currently in detention, she is not able to provide a statement in the time allowed. However, [the applicant] has given clear instructions on the issues relevant to her claims for protection.

   [The applicant’s] instructions are that she requires and seeks protection in Australia, as she has real and founded fears for her own safety, as well as the safety and wellbeing of her son, [named], in her home country of Vietnam. As a consequence of this, [the applicant] believes that she cannot safely return to her home country of Vietnam without harm if she were removed from Australia, and she has no right to enter or stay in any other country.

   [The applicant’s] fear relates to her current status as a convicted criminal of drug offences, which are seen and viewed with extreme severity and disdain in Vietnam by both the community and the government. [The applicant] believes that, if she and her son returned to Vietnam, as a result of her criminal convictions and history, she will face significant harm to her psychological wellbeing, her livelihood and freedom, and her economic wellbeing—including being attacked, controlled, denied access, and discriminated against.

3. In a letter dated 18 November 2021, the applicant’s migration agent wrote to the Tribunal, stating the applicant understood that her application had no prospects of success. The applicant wishes to seek Ministerial intervention under s 501J of the Act.

4. In light of the indication on behalf of the applicant that the applicant acknowledges that the application has no chance of success, and the applicant declining the invitation to attend the hearing, the Tribunal is not satisfied that there are factual circumstances resulting in the applicants facing a real chance of serious or significant harm in Vietnam.

5. It is clear that the applicants are waiting for a negative decision as a precursor to being able to make an application for Ministerial intervention.

6. In summary, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm.

7. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

8. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

9. There is no suggestion that the applicants 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 applicants do not satisfy the criterion in s 36(2).

   DECISION

10. The Tribunal affirms the decision not to grant the applicants a protection visa.

    David McCulloch
    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.

    …