2117710 (Refugee)

2117710 (Refugee) [2022] AATA 4402 (17 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Nguyet Thi Doan (MARN: 1795946)
CASE NUMBER:  2117710
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:17 October 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 October 2022 at 8:44am
CATCHWORDS
REFUGEE – protection visa – Vietnam – household registration lapsed – Citizen Identity Card (CIC) – failed asylum seeker – economic harm – capacity to subsist – mental health issues – request for Ministerial Intervention – inappropriate circumstances – onshore Partner visa application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 362A, 417
Migration Regulations 1994 (Cth), r 2.12; Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 for Home Affairs on 12 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 3 August 2021. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 5 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by a registered migration agent.
Criteria for a protection visa
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.
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, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
ISSUES
The issues in this case are whether there is a real chance that if the applicant returns to Vietnam he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Claims and evidence
Protection Visa Application
The applicant applied to the Department for a protection visa on 3 August 2021.
In his application for a protection visa, the applicant stated that he was born in [Tra Vinh], Vietnam on [date] and that he was married to [Ms A] [in] October 2020. The applicant indicated that his wife was an Australian permanent resident. He indicated that his parents, [number] brothers and one sister were all currently living in Vietnam. He stated that he sometimes made telephone calls to speak to his parents and siblings and stated that they were living in [Tra Vinh], Vietnam. He stated that he had lived at the same address [from] birth until his departure from Vietnam in June 2011. He stated that he was of Vietnamese ethnicity and Buddhist religion.
The applicant stated that he had arrived in Perth, Australia [in] June 2011 as the holder of a Temporary Worked Skilled 457 visa. He claimed that he had been unemployed in Vietnam from 1993 to August 2008 and had then been employed as a [Occupation 1] from August 2008 to the end of May 2011 by a company called [Company 1]. He stated that in Australia he had been employed as a [Occupation 1] from July 2011 to June 2015 and had then been unemployed since that time. The applicant also stated that he had completed primary school in Vietnam in [year].
The applicant stated that he was seeking protection and could not return to Vietnam. He stated that he had left Vietnam to work temporarily in Australia and that he had not experienced any harm in Vietnam in the past. He stated that if he returned to Vietnam, he feared the risk of detention and criminal charges for remaining outside Vietnam for an extended period. He claimed that he would be perceived as not being loyal to Vietnam as evidenced by his prolonged absence from Vietnam and stated that he could not relocate to any other part of the country to escape the harm he feared because relocation would not stop or minimise the risk of persecution without lawful excuse.
The applicant provided the Department with copies of his Vietnamese passport, his birth certificate (including translation), his Vietnamese national identity card (including translation) and his Western Australian driver licence. The applicant also provided the Department with various documents in support of an application to obtain a bridging visa with working rights in Australia.
The delegate refused to grant the applicant a protection visa on 12 November 2021.
Application for Review
The applicant lodged an application for review with the Tribunal on 26 November 2021. Together with his application, the applicant also provided the Tribunal with a copy of the delegate’s decision record, a copy of the accompanying notification letter and a submission from the applicant’s representative.
In the submission dated 26 November 2021, the representative provided a summary of applicable law and criteria in relation to the grant of a protection visa and Australia’s obligations under the Refugees Convention. The representative then summarised the applicant’s claims for protection as follows:
·Direct targeted serious harm, including threats to his life or liberty, death and significant physical harassment and ill-treatment by Vietnamese authorities by reason of his having maintained a claim for asylum in Australia;
·Direct and indirect threats to his life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats) for the same essential and significant reason above; and/or
·Direct targeted serious harm including threats to his life or liberty, death and significant physical harassment and ill-treatment by Vietnamese authorities and/or thugs for reasons not covered by s5J(1)(a) but where the Vietnamese authorities may discriminatorily withhold protection for the same reason namely his claim for asylum in Australia;
·Direct and indirect threats to his life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats) by Vietnamese authorities and/or thugs where the Vietnamese authorities discriminatorily withhold protection because of his claim for asylum in Australia;
·Ongoing cumulative serious discrimination by Vietnamese authorities and Vietnamese businesses that causes him significant economic hardship that threatens his capacity to subsist and denies him the capacity to earn a livelihood of any kind, where that denial threatens his capacity to subsist – motivated by him having sought to attract Australia’s protection obligations and his extended period of absence from Vietnam.
On this basis, the representative argued that the applicant seeks to attract Australia’s protection obligations under the Refugee Convention or alternatively under complementary protection. The representative stated that in seeking complementary protection the applicant submits that he is at a more than remote risk of suffering the following instances of significant harm as a necessary and foreseeable consequence of him being returned to Vietnam:
·Arbitrary deprivation of life by Vietnamese authorities and/or thugs; and/or
·Torture at the hands of Vietnamese authorities and/or Vietnamese prison guards; and/or
·Cruel or inhuman treatment or punishment and degrading treatment or punishment by Vietnamese authorities.
On this basis, the representative stated that the applicant intends to provide the additional evidence and relevant Country Information in support of his application for review, that he intends to give testimony at an oral hearing and also call witnesses and present oral arguments and submissions through the representative.
The representative also stated that the applicant was also making the review application in order to seek the Tribunal’s assistance in making a referral to the Minister to consider exercising their personal intervention powers for favourable exercise of discretion should the review application fail.
On 24 June 2022 the Tribunal invited the applicant to attend a hearing scheduled on 5 August 2022 to give evidence and present arguments relating to issues arising in his case.
In response to this invitation, the applicant’s representative sought to make an application under s362A of the Act to obtain access to written material before the Tribunal.
On 28 June 2022 the Tribunal wrote to the applicant’s representative and informed them that an application for review of a Protection Visa under Part 7 of the Act is not subject to s362A. The Tribunal invited the representative to make an application under the Freedom of Information Act 1982 (Cth) if they wished to do so.
On the same date, 28 June 2022, the representative stated that they had made an FOI request to the Department on 2 December 2021 but had not received any response.
By further email on the same date, 28 June 2022, the representative provided a signed hearing response form where the applicant accepted the hearing invitation and also foreshadowed that the applicant may at a later stage apply for an adjournment to the hearing on the basis that FOI requests made on 13 July 2021, 2 December 2022 and 27 June 2022 that had yet to be answered.
On 1 August 2022, the representative provided the Tribunal with signed statements from the applicant and the applicant’s wife, [Ms A].
In his statement, signed on 1 August 2022, the applicant stated his date of birth, confirmed his nationality as Vietnamese and his religion as Buddhist, and stated his occupation as a business owner of a [specified business].
The applicant stated that his parents were still living in Vietnam, were retired and he and his wife sent money back to Vietnam for their living expenses. His [adult] siblings were all married and living in Vietnam. The applicant stated that he was currently living in a suburb of Perth with his wife and his two stepsons who were [age] years old and [age] years old respectively. He claimed that he had a business called [Business 1] and the business [engages in specified activities] at two sites in Perth. He stated that he and his wife worked in this business and they also employ contractors.
The applicant stated that prior to coming to Australia, he had worked in his family [business]. He then summarised his visa history in Australia, stating that he had originally come to Australia on a subclass 457 visa in 2011 when English was not a criterion under this visa. In 2015, his employer tried to lodge another nomination for a subclass 457 visa but the nomination was refused in 2016 and in addition the applicant’s visa application was refused.
The applicant stated that he then lodged a partner visa with his former de facto partner in October 2017 but this visa was also refused in September 2018. He was very sad at the time, he was torn by his broken relationships and he was depressed about his life so he did not want to return to Vietnam because he felt that he had been away for a long time.
The applicant stated that if he returned to Vietnam, he would be arbitrarily deprived of his life due to the fact that his name had been removed from the family household registration for six or seven years. His family had confirmed that under the new system everyone was required to apply for an identity card and the individual household registration was an electronic chip that connected to the individual’s identity card.
The applicant stated that in Vietnam there were local elections in his hometown every year and the local authority distributed ballot papers to all the registered householders. He claimed it was compulsory to vote for the local representatives, however, according to his father the local authority did not have an invitation addressed to the applicant’s name to vote in annual elections for at least the past 6 to 7 years. He added that they only provide invitations to people with household registration.
The applicant stated that after four years in Australia his employer wanted him to continue working for them because he was a very good worker, but he did not meet the English language requirement for the subclass 457 Visa. He tried to enrol in an English language course but because he had not attended school for many years he found it very hard to go back to school and he found it very difficult to learn English. He was also very tired to attend classes after work because the duties [required] a lot of physical work. Because he could not concentrate, he quit this course.
The applicant stated that he did not want to return to Vietnam because at the time when he was lawful he wanted to stay in Australia to continue working for his previous employer. He claimed that the employer was seriously understaffed and really needed him to stay and continue working for her.
The applicant claimed that when his previous partner did not want to continue with their relationship in September 2018, he was very distressed, he was very sad and did not know what to do. Because his previous partner withdrew her sponsorship for the partner visa he became unlawful after 28 days. He got very depressed at this broken relationship and started drinking about 4 to 5 times a week. He had many friends in the local area, he invited them to drop by, he cooked for them after they had finished work and they would drink with him until late. He had no money, so he was offered food and drink by the people who owned the house and his friends that came to drink with him. After he got drunk, he would go to bed and wake up very late on the next day. His depression got worse, but he did not know what else to do apart from drinking.
The applicant stated that his mental health improved, and his depression lessened when he got to know his current wife. He felt like he did not want to go back to Vietnam even more after he met his wife and he really felt there was a purpose in his life. He had no purpose before, and every day was a struggle if he did not drink. After he got drunk, it was easier for him to sleep and he did not have to remember anything sad about his life.
The applicant stated that he had been away from Vietnam for no valid reason since 2018 and if he returned to Vietnam, he would need to attend an interview as this is required by the local authorities. If he tried to hide in his parents’ house and did not inform the local authorities that he had returned to Vietnam, the local authorities would send a letter for an interview. He stated that the authorities have daily officers who roam the local area to identify who is new to the area and also who does not report to them. He claimed that even people who stay temporarily in the area need to report to the local authority where their passports and identity cards need to be shown to the local officials.

The applicant stated that he was also afraid that if he returned to Vietnam he would be possibly detained at the airport. The government officials would know from his passport his reasons for his departure from Vietnam and why he had returned to Vietnam. This could be because he had been refused the protection visa and may be deported back to Vietnam as a failed asylum seeker. He stated that the Vietnamese government would want to know why he had been away from Vietnam and had not returned for several years. Although he had done nothing against the government, he knew that during the Covid pandemic everyone was struggling to make a living including the government officials. He claimed that even the government was behind on their wage payments for their staff, especially medical staff at public hospitals who were many months behind, and the medical staff were quitting their jobs. He claimed he knew this to be true from watching news on the internet.
Therefore, the applicant claimed that he feared the government officials would target him for bribery and claimed that the Vietnamese are well known for their corruption. He did not believe the country information which states the Vietnamese government is not corrupt or have improved over the years and people who come back to Vietnam as failed asylum seekers only get a fine. He stated this was all fake and not true. He claimed that it is only the people who have lived in Vietnam know their own government behaviour and how they really treat their own people. He claimed that people from overseas who go to Vietnam to do their research only scraped the surface and nothing has improved in Vietnam, in fact more and more people were corrupted. He claimed that the Vietnam officials target people who are vulnerable like himself who need documentation from the government to apply for a job and earn a living if he returned to Vietnam. He claimed that as a result he would be deprived of the basic services in Vietnam and his life would be significantly impacted.
The applicant claimed that he also feared that if he went back to Vietnam his business with his wife would be significantly affected. He stated that his wife would not be able to manage the business by herself at two locations and it is most likely that she would close the business and her employees would lose their jobs. He claimed that his wife had experienced depression in the past due to family violence with her ex-husband and she would worry about the applicant because he may be detained and pay a bribe to the Vietnamese officials, and she may not have the money to pay them. He also stated that he may never be able to return to Australia on any visa including a partner visa because he would have difficulties obtaining the documents to lodge a partner visa. In addition, he stated that his wife needed to care for her two teenage boys who were still dependent on them. The applicant stated he was very scared of this happened as he would lose everything.
The applicant claimed that he met his current wife in November 2019, and they entered a committed relationship [in] June 2020. The applicant claimed that he was unable to lodge a partner visa with his wife because he had a sponsorship limitation. He stated that before his current wife he had lodged a partner visa with his previous the facto partner in 2017 so it had not been five years since his first lodgement of a partner visa. He claimed that he and his wife were trying to have children through IVF but had endured several failed attempts as his wife was very stressed about him returning to Vietnam. However, his wife insisted to have a child with the applicant as he had never had any children. The applicant stated he did not mind about having children, but he was afraid that if he went back to Vietnam he was not sure how his wife would manage. He claimed that his wife had told him she would do anything to help them stay in Australia so that he can be with her and her children as a family.
The applicant stated that he was already unlawful and living in Australia and he was unable to lodge for any visa to another country. He claimed that he is still asked why he did not ask for protection in Australia when he was already here, and he may not have a very good explanation. He had already lived in Australia since 2011 so he would not know where else he could go except for Australia and he enjoyed living here. The applicant stated that he lodged the protection visa almost 3 years after he became unlawful in Australia. He claimed that he was very depressed because of his broken relationship with his former de facto partner and was not able to work anymore. He had relied on alcohol and drinking with his friends to make him feel better and he did not know anyone who could help him to lodge a protection claim. After he met his wife, he wanted to lodge a partner visa but was unable to do so because of his sponsor limitation.
The applicant stated that he had been unlawful since approximately October 2018 and he had not done anything about his visa status because he did not know what to do and he did not want to return to Vietnam due to the fears that he had previously mentioned.
In a statement dated 1 August 2022, [Ms A] claimed that she was the wife of the applicant and stated that she operated two [businesses] in Perth. She claimed that the applicant and she both worked in the business and employed contractors to work for them. She had two teenage sons from a previous marriage that had ended in divorce in 2019. She claimed that after the birth of her second child in [year] her GP diagnosed her with postnatal depression and, after her divorce, she experienced a lot of stress and was diagnosed with more depression. She stated she was on medication for depression since [birth of her second child].
[Ms A] stated that when the applicant could not lodge a partner visa her depression got very bad and she returned to see her GP. She told the GP that she was feeling so depressed, and he referred her to see a Vietnamese psychologist. The psychologist had advised that he would send the report to support the applicant’s claim for a protection Visa.
[Ms A] stated that she met the applicant in November 2019, they entered a committed relationship [in] June 2020 and they got married [in] October 2020. She claimed that an agent tried to lodge a partner visa for the applicant and herself but was unable to do so because the applicant had sponsorship limitations which prevented him from lodging the partner visa. She claimed that the applicant had work rights, so he was able to assist in her [business].
[Ms A] claimed that the applicant did not lodge an application for a protection visa until three years after he became unlawful in Australia in October 2018. After she met the applicant, he had told her that he was in a committed relationship with another person and they lodge the partner visa application in October 2017 but it was refused in September 2018. The applicant got very sad and depressed and started drinking vigorously by himself and with his friends. He just wanted to sleep for a long time, so he did not wake up and remember all the sadness. When he was awake and not asleep, he cried a lot. [Ms A] claimed that when she met the applicant in 2019 and 2020 he shared information with her about his circumstances. He was afraid of returning to Vietnam because he had been away from Vietnam for several years and he felt scared to return to Vietnam as he would be persecuted, and he would be interrogated about his long absences.
[Ms A] stated that she was scared that when the applicant returned to Vietnam, he would be interrogated for more than five minutes as the Vietnamese officials would want to know why he had left Vietnam on a subclass 457 Visa in 2011 and returned to Vietnam as a failed asylum seeker. They would interrogate the applicant about what he has said about his protection claims and the applicant would be a target for bribery from Vietnamese government officials because of his vulnerability. If he did not pay a bribe, they would detain him and may not release him, and she would need to send money to Vietnam for his release.
[Ms A] stated that the Covid pandemic would create more excuses for the Vietnamese government officials to detain the applicant and they would detain him for bio security reasons which was just a disguise for corruption by the government officials.
[Ms A] claimed that the applicant had spoken to his father about his household registration and had found out that he had lost his household registration for 6 to 7 years. The local authority would not send an election card to the applicant for all these years for him to vote in an election which means that his household registration had been lost. If the applicant returned to Vietnam, he would need to reapply for a new household registration however he would have issues with renewing a household registration because the system has changed to a microchip. He would need to prove that he is not anti-government and anti-Communist to obtain household registration and it would be hard for him especially when he has returned to Vietnam as a failed asylum seeker.
[Ms A] claimed that because the applicant has a record as a failed asylum seeker he would be assumed as being anti-Communist and anti-government and would have problems relocating to other parts of Vietnam because Vietnam is a one-party government, and he cannot do anything to improve his status.
[Ms A] claimed that it would be harder for the couple to lodge a partner visa offshore because the applicant would have problems obtaining the necessary documents to lodge an offshore partner visa and he would also need to show a police clearance. If he was a failed asylum seeker he may be charged with offences against the government, and it would be difficult for him to provide any documents required for a visa. She stated that as a result, the applicant’s life for basic human rights would be impacted and he would experience significant harm when he returned to Vietnam.
[Ms A] stated that if the applicant returned to Vietnam her mental health would also be significantly impacted because she was already experiencing a high level of anxiety and depression and had feelings of suicide. She believed that she could not handle the stress, would become extremely depressed and may even take her own life. She claimed that she had feelings like this before.
[Ms A] stated that the couple could not currently lodge a partner visa onshore. She requested that if the Tribunal was not persuaded that the applicant would meet the criteria for protection and complementary protection that the Tribunal refer the matter to the Minister so that the applicant can stay in Australia and not return to Vietnam and the couple could lodge a partner visa onshore.
In an email dated 2 August 2022, the applicant’s representative stated that they had yet to receive a response to their FOI request from the Department and foreshadowed that if they did not receive a response soon, they would apply to adjourn the hearing scheduled on 5 August 2022. The representative also stated that the applicant and his wife had been receiving therapy from a psychologist for significant mental health issues and had experienced suicidal ideations. In the circumstances, the representative requested additional time for the applicant and his wife to obtain relevant medical and psychological evidence. The representative added that she understood that the risk of self-harm would amount to significant risk in terms of complementary protection.
In a response on the same date, 2 August 2022, the Tribunal informed the representative that it did not consider that an outstanding FOI request to the Department would be a valid reason for a postponement of the scheduled hearing because if the Tribunal was to rely on any adverse information relating to these matters it would bring the information to the attention of the applicant and allow them the opportunity to comment on it. The Tribunal also indicated that any request for further time for the applicant to submit medical documentation could be considered at the hearing.
In an email dated 3 August 2022, the representative expressed disappointment that a postponement request was not considered and requested that if the hearing was to proceed that it would be part heard to allow the tender of additional forensic evidence. The representative also indicated that they intended to provide additional and supplementary submissions after receipt of the FOI. The representative also asked if there were any nondisclosure certificates on the file and whether the Tribunal intended to rely on any country information that was not found on CISNET.
In a response on the same date, 3 August 2022, the Tribunal informed the representative that it was not aware of any nondisclosure certificate in this matter. It also informed the representative that pursuant to Ministerial Direction number 84 made under s 499 of the Act, the Tribunal must consider 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. Any other country information that the tribunal may deem relevant would be disclosed to the applicant at or after the hearing.
In a submission dated 4 August 2022 the representative stated that the applicant would not be able to obtain a report from a psychologist prior to the scheduled hearing. The representative stated that the applicant’s wife had been seeing the psychologist in her own right as a patient for her mental health and separate to that of the applicant but given the impact the possible removal of the applicant would have it was important that the psychologist also assess the applicant and provide a forensic report. The representative expressed her concern that in the absence of the documents she had requested through FOI and the report of the psychologist she believed the applicant may be at a disadvantage in presenting his case.
The representative stated that when she lodged the protection visa on 3 August 2021, she candidly said to the Department that she had advised the applicant that his application to attract Australia’s protection obligations had limited prospects of success but the application was lodged as the applicant was unlawful at the time and the application was to be a vehicle for the applicant to access ministerial intervention. However, the representative stated that after taking further detailed instructions and familiarising herself with relevant country information and speaking with witnesses she was now of the opinion that there was indeed some merit in the applicant’s claims and especially in relation to complementary protection.
The representative added that even if the Tribunal affirmed the primary decision then nonetheless a referral or to be made to the Minister for favourable exercise of his personal intervention powers including a necessary bar lift and/or sponsorship waiver to allow the lodgement of a partner visa given that the applicant is now in a relationship with an Australian citizen and the couple is wishing to start a family. The representative claimed that there were also significant mental health considerations for both the applicant and his Australian partner which it would be submitted compels referral to the Minister for a favourable consideration of the Minister’s intervention powers.
Tribunal Hearing
Immediately prior to the hearing, the applicant provided the Tribunal with the bio data page of his new Vietnamese passport which had been issued to him in Perth [in] 2020. The witness, [Ms A], also provided a copy of her Vietnamese passport.
The applicant’s representative was in attendance during the Tribunal hearing.
At the commencement of the hearing the Tribunal sought to clarify with the representative what information she was specifically seeking in her FOI request to the Department which she believed would affect the application that was before the Tribunal. The representative responded that she was looking to see if there was any adverse information in relation to the applicant. The Tribunal responded to the representative that, if there was any adverse information that the Tribunal would rely on, it would need to put that information to the applicant and allow him time for a response. The representative agreed that this was the case.
At the Tribunal hearing the applicant confirmed that he had been born on [date] in Tra Vinh, Vietnam. He claimed that he had lived in Tra Vinh in the family home until he came to Australia. He stated that in Vietnam he worked as a [Occupation 1] on his family’s property which was about [number] m² in size. He confirmed that his family still owned this property, but it was no longer used for farming and was used in [specified business activities]. He stated that his parents no longer worked, and his siblings were running the [venture].
The applicant stated that he came to Australia [in] June 2011 and that he was sponsored by his cousin on a subclass 457 Visa. He claimed that he worked as a [Occupation 1] for his cousin who owned a farm in [location] and that he did this work for four years. When asked what happened after four years, the applicant stated that his visa expired. His cousin tried to obtain a two-year extension for the visa, but it was refused and later on the applicant got to know a girlfriend.
The applicant was asked whether, during that period when his cousin was trying to extend the visa, the applicant did anything to assist in the visa extension process. He responded that he got to know a girlfriend and she sponsored him. The applicant was asked how long after his subclass 457 visa expired this partner sponsorship application was made. He stated that the sponsorship application was lodged in October 2017.
The applicant could not recall when his subclass 457 visa had expired. The Tribunal asked the applicant if he was the holder of a valid Australian visa when his then-girlfriend applied to sponsor him in October 2017. He responded that the visa was no longer valid and confirmed that at the time he was living in Australia illegally without a valid visa.
The Tribunal asked the applicant why he chose to stay in Australia illegally at the time. He responded that it was because he got to know this person and she was going to sponsor him. He added that after a while the visa was refused in September 2018. The Tribunal again asked the applicant why he chose to stay in Australia illegally at the time that his subclass 457 visa had expired. He responded that he wanted to work and stay in Australia. He claimed that he met this person who he wanted to marry but the application was refused. When asked why this application was refused, the applicant stated that a lawyer told him that the application was late. He added that after the application was refused, they wanted to redo it and supply more information, but the couple started having conflicts and they split up as they were no longer compatible. He stated that the former girlfriend had made him withdraw the application and he was very sad at the time.
The Tribunal asked the applicant when the relationship with this former girlfriend had ended. He stated that after the visa was refused, they were not happy and later she found a new friend. The Tribunal stated that it was not looking for a specific date but asked the applicant if he could recall generally around what date or month the relationship ended. He responded that he could not remember the date but that the visa had been refused in September 2018.
The Tribunal expressed its concern to the applicant that he was able to recall with some specificity when his visa application had been rejected but he was unable to recall when the actual relationship that the visa application was based on had ended. The Tribunal stated that his lack of recall of when the relationship added raised questions about whether this relationship had ever been genuine. The applicant responded that the relationship had been genuine.

The applicant confirmed to the Tribunal that after this partner visa had been refused in September 2018, he had lodged a review of the refusal with the Administrative Appeals Tribunal (differently constituted) and had later lodged an appeal with the Federal Circuit Court. He confirmed that during the partner visa process he was represented by a lawyer but added that it was not his current representative. He also confirmed that he had been represented by a lawyer during the application to extend his subclass 457 visa but that the lawyer at the time was not the current representative.
The applicant confirmed to the Tribunal that after his partner visa had been refused, he did not hold a valid visa to stay in Australia. When asked why he stayed in Australia without a visa, the applicant stated that he did not dare to return to Vietnam anymore because the period he stayed in Australia had been prolonged and he had no more papers in Vietnam. His family had told him that his name was no longer included in their household registration and during elections for parliament he was scared because his name was no longer on the electoral roll. He claimed that he was very sad because nothing had been successful, and he was depressed and feeling bad. He stated that his friends would come over and they would start drinking, and he would get very stressed if he did not have a drink.
The Tribunal asked the applicant why he did not apply for a protection visa back in 2018 or 2019 after the partner visa refusal process had ended but had instead waited until August 2021 to lodge his current application. He responded that he did not know about it. The Tribunal pointed out to the applicant that, based on his own evidence, he had been represented by a lawyer for both his subclass 457 visa extension application in 2015 and his partner visa application in 2017 which indicated that he had access to legal and migration advice. It was pointed out to the applicant that his failure to apply for protection until August 2021 may indicate that he did not genuinely hold the fears that he claimed to have about returning to Vietnam. He responded that what he was saying was the truth. He added that he met his current partner later on, and he got to know about protection visas because he had been told that sponsorship was not allowed for five years for a partner visa.
The Tribunal asked the applicant if he only applied for a protection visa because he was advised that he couldn’t apply for another partner visa at the time. The applicant confirmed that this was the case. When the Tribunal pointed out to the applicant that this is not a valid reason for granting him a protection visa, the applicant stated that he did not know what to say.
The applicant stated that he met his wife in November 2019, and they married [in] October 2020. He confirmed that they lived together in a rented house in Perth. When asked what he did for work in Australia, the applicant stated that his wife does [specified] work. When again asked what he did for work in Australia, the applicant responded that he worked [in a business venture] together with his wife. He stated to the Tribunal that the couple owned the [venture] together and claimed that both their names were on the business records. When asked how long his wife had run this business, the applicant stated that it had been operating for a long time and, after they moved in together, they leased the land in order to have a business. When asked when this business commenced operation, the applicant stated that it was around two years ago.
The Tribunal asked the applicant what the annual turnover of the business was, and he responded that the taxation people had not given it to him yet. The Tribunal pointed out to the applicant that as a business owner it would be expected that he would have a good idea of the turnover of his business on a daily, weekly, monthly and annual basis and again asked the applicant if he could provide any turnover details. The applicant responded that the turnover was okay, but he did not know the total because his wife does all the paperwork. When asked how many people worked in the business, the applicant responded that they used contractors to do the [work] and sometimes there were 10 contractors and other times there were less. He added that they also [undertake other specified work]. The Tribunal asked the applicant if his wife’s ex-husband was involved in this business and he responded that he was not involved.
The Tribunal asked the applicant if he had suffered any problems in the period that he lived in Vietnam prior to coming to Australia. He claimed that he had not done so. He stated that he had returned to Vietnam once since his first arrival in Australia in 2011 around two or so years after he first came to Australia, but he could not remember the exact date. He claimed that he spent nearly 2 weeks on this visit and stated to the Tribunal that he had not had any problems in Vietnam during this return visit.
The Tribunal asked the applicant to say in his own words what he feared about returning to Vietnam now or in the reasonably foreseeable future. The applicant responded that he was scared to return to Vietnam. When asked why he was scared to return to Vietnam, he stated that he had been here in Australia for too long and he did not have any papers so he would not get protection from the country.
It was pointed out to the applicant that immediately prior to the commencement of the hearing he had provided the Tribunal with a new Vietnamese passport that had been issued to him in Perth [in] 2020. He responded that the passport had been renewed here in Australia and confirmed that he had not had any problems renewing the passport with the Vietnamese authorities in Australia. The Tribunal stated to the applicant that the renewal of this passport would indicate strongly that the Vietnamese authorities had no problem with him. He responded that he had been away for so long now that he has no papers and that is why he was scared. The Tribunal pointed out to him that he had a new passport issued by the Vietnamese authorities and he had previously provided the Department with a copy of his valid Vietnamese ID card. The applicant responded that he could not use the ID card because they had been changed and were not the same as before.
The Tribunal stated to the applicant that country information from the DFAT suggests that on return to Vietnam he would be able to go to the authorities and obtain a new household registration and also be issued with a new electronic ID card. In response the applicant stated that he knew this was not possible because he had been away for a long time and on return, he did not have papers so he would have problems.
The Tribunal asked the applicant whether he had any fears of returning to Vietnam apart from not having the appropriate papers. He stated that he was afraid he would be arrested. When asked why he would be arrested, the applicant stated that he had been away for a long time and didn’t have any papers so they would know he was returning from overseas.
The Tribunal stated to the applicant that country information from the DFAT suggests that people returning to Vietnam may well be detained and interviewed at the airport for a few hours but unless somebody had specific issues with people smuggling, criminal activity or were political activists they would have no issues with the authorities and would be released freely into the community after their interview at the airport. The applicant stated that he had never committed any crimes relating to those things that the Tribunal had mentioned but he had lived in Vietnam, so he knew what the country was like.
The Tribunal asked the applicant if he had been receiving regular medical treatment in Australia and he stated that he had been doing so. When asked to articulate the nature of this medical treatment the applicant responded that he had no ailment, but he was stressed. However, he confirmed that he was not taking any medication at the moment for his stress. When again asked what treatment he was receiving in Australia, the applicant responded that his stress was only recent because he was living without a visa and he felt a lot of stress. The Tribunal asked the applicant if he was receiving any treatment from a psychologist or psychiatrist. The applicant responded that he had not yet received any such treatment but had been experiencing stress for a long time and yesterday he did paperwork to get treatment. When asked what sort of paperwork, the applicant responded that he knows it is stress, but he did not know what it was like. When again asked what paperwork he had completed yesterday, the applicant stated that he saw someone called [Dr B] who was a psychologist.
At this point in the hearing the representative was observed whispering information to the applicant. The Tribunal pointed out to the representative that this behaviour was not to be tolerated and that the Tribunal expected the applicant to provide his own evidence without the representative interfering or telling the applicant what to say. The representative apologised and stated that she would not do that again.
The applicant told the Tribunal that he had seen [Dr B] yesterday (being the day before the hearing) for the first time because he was feeling very unwell and wanted to see what his condition was. When asked who had referred him to this psychologist, the applicant stated that he had seen his GP before and the GP advised him to go and see the psychologist. He claimed that the appointment had been made a while ago. When asked exactly when the appointment had been made, the applicant stated that the appointment had been made last week and yesterday he rang him. He added that he met him yesterday for the first time.
The Tribunal stated to the applicant that based on his own evidence he had suffered stress since the breakdown of his first relationship quite some time ago but he had only seen I psychologist for this stress for the first time yesterday, which could lead to a conclusion that he only saw the psychologist to assist him with his current application for protection. The applicant stated that he had been under stress for a long time, he had told his GP who had given him a telephone number for the psychologist. He indicated that he was not currently receiving any medication for the stress and claimed that he had been seeing two general practitioners for quite some time.
The Tribunal asked the applicant to comment on the concern that his application for protection only being lodged 10 years after he had arrived in Australia, after two further onshore applications for Australian visas had been rejected and only after he was informed that he was not able to immediately apply for another partner visa may indicate that he only lodged the protection visa application to stay in Australia and not because he had any genuine fear of returning to Vietnam. The applicant stated that it was the truth. When asked what the truth he was referring to, the applicant responded that he wants to submit this claim to get protection. When asked what he wanted to seek protection from, the applicant stated that it had been a long time and he could not return to Vietnam because he was very scared to return, and it would be more difficult for him to do so. The Tribunal stated to the applicant that it recognised that it would be more difficult for him to return to Vietnam than to remain in Australia, but that reason alone did not make him a refugee or entitle him to protection. The applicant responded that this was all he wanted.
The Tribunal stated to the applicant that in submissions made on his behalf it had been claimed that he had fears of returning to Vietnam as a failed asylum seeker from Australia. On this basis, the Tribunal asked the applicant if he held those fears because he had not articulated such fears at the hearing. The applicant responded that yes, he was very scared. The Tribunal asked the applicant why he did not tell the Tribunal about this fear before it raised it with him. He responded that “I only told you today”. The Tribunal stated to the applicant that he had not raised this concern at all until the Tribunal pointed it out to him and asked him to comment. He responded that he was very afraid of returning to Vietnam.
The Tribunal pointed out to the applicant that country information suggested that Vietnamese authorities did not take an active interest in failed asylum seekers and that in any event Australian authorities did not disclose this information to any foreign government. The Tribunal stated to that applicant that country information also indicated that the Vietnamese authorities did not have any specific interest in people who had stayed away from Vietnam too long. The Tribunal specifically referred to paragraph 5.31 of the DFAT Country Information Report Vietnam dated 11 January 2022 which stated:
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one or two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
When asked to comment on this information, the applicant stated that he had been living in Australia for a long time and he would have many problems on return because he did not have any papers. He feared he would get detained and may even be tortured if he did not have any money. The Tribunal pointed out to the applicant that he had claimed that he was running a successful business in Australia in which case he would have money. The applicant responded that if he returned to Vietnam, he feared what would happen to his wife. He claimed that his wife couldn’t continue with the business because she was stressed. If the business closed, she would have no money to raise her children. When asked why his wife could simply not hire somebody else to replace the applicant, the applicant repeated that his wife was already stressed, and this would add to her stress. The Tribunal agreed with the applicant that it would be a stressful situation for his wife if he had to return to Vietnam but added that the wife was running a business including, based on the applicant’s own evidence, running all the bookwork for the business, and asked the applicant why she could not hire somebody to replace the applicant in the business. The applicant stated that the business had been set up jointly by the couple and the wife could not hire people to work there on their own. When asked why she could not do so, he responded that hiring people involved many things including food and drink and internal affairs.
The Tribunal asked the applicant if he had ever studied in his time in Australia. He stated that he had previously attended school but could not absorb things. He stated that this happened around the period when his first visa had expired and people who wanted to extend his visa had asked him to attend a school in [location] known as [Education Provider 1]. When asked if he had any evidence of this enrolment, the applicant stated that he did not know where the paperwork was because it was a long time ago.
The applicant indicated that he did not wish to provide the Tribunal with any further information or evidence.
The witness, [Ms A], stated that she wanted to talk about her husband, and she wanted him to remain with her rather than returning to Vietnam. When asked why she wanted the husband to stay in Australia, the witness stated that it was too dangerous for him to return because he had been in Australia for a long time.

100. The witness stated that she first came to Australia around 20 years ago and when asked if it was dangerous for her to also return to Vietnam, she responded that it was not dangerous for her because she had come to Australia under a spousal sponsorship. The Tribunal asked the witness why it would be dangerous for the applicant to return to Vietnam given that he had come to Australia on a subclass 457 Visa as a [Occupation 1]. The witness refused to respond to this question.
101. The Tribunal asked the witness how long she had run her business. She responded that she had run it for 10 years and confirmed that she had been running this business before she met her husband. The Tribunal asked the witness who owned this business. Initially the witness stated that she owned the business and then added that she owned the business with her former husband.
102. When asked to confirm that she owned the business with her former husband, the witness stated that she had previously worked in the business, but they had been divorced since 2019. The Tribunal asked the witness to clarify who actually owned the business. At this point the witness stated that the business was owned by her current husband and herself. When asked why this evidence was different to what she had told the Tribunal a few moments earlier, the witness stated that she did not know where to start. The Tribunal pointed out to the witness that the ownership of the business appeared to be a very non-controversial question and she responded that she did not know where to start from. When again asked to clarify who owned the business, the witness stated that the current business was for the two of them because she had got divorced. She added that she got to know the applicant and married him in 2020. The Tribunal asked the witness why she had earlier told the Tribunal that the business was owned by her and her ex-husband if it was actually owned by her and her current husband. She responded that it was because the Tribunal had asked her how long she had owned it. The witness stated that she would provide the Tribunal with ownership documents for the business after the hearing and claimed that there was a lease with the applicant’s name on it that had been signed in 2020.
103. The Tribunal asked the witness why she would allow someone to come into her business if they didn’t have a valid visa to stay in Australia. She responded that it was because they had registered their wedding in October 2020.
104. The Tribunal asked the witness to clarify what her health issues were. She stated that she had been stressed in [year] after she gave birth to her children. The Tribunal asked the witness what medication she was taking. She responded that her general practitioner prescribed medication for her to help her sleep. When asked for the name of this medication she stated that she did not know the name of the medication. When asked how long she had been taking this medication, the witness stated that she took it for a long time but was not currently taking the medication. When asked to confirm her evidence that she was no longer taking this medication, the witness stated that her problems recur, so she wants to ask for some again.
105. The witness stated that her general practitioner was [Dr C] and that she had seen a psychologist named [Dr B] three times recently. When asked when she saw [Dr B] for the first time, she responded that she could not remember. After some further questioning she stated that she had seen him for the first time this year but could not recall which month.
106. The witness was asked what her concerns were about the applicant simply returning to Vietnam, lodging a partner visa in Vietnam and then returning to Australia when that visa was granted. She responded that they were working together in the business and if the applicant left it would be difficult. When asked why she could not simply hire somebody else to work in the business in the absence of the applicant, the witness stated that you cannot trust anybody like you can trust your husband. The witness stated that her business had three paid employees and also used one contractor. She then stated that her ex-husband had not been involved in the business since their divorce.

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.
…

[2022] AATA 4402

17 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction