2403854 (Refugee) - [2024] AATA 4210

2403854 (Refugee) [2024] AATA 4210 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403854

COUNTRY OF REFERENCE: Vietnam
MEMBER:Catherine Wall
DATE:7 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 August 2024 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – land confiscation – protests – physical violence – fear of detention – victim of loan shark – period of unlawful residence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
CSV15 V MIBP [2018] FCA 699
EZC18 V MHA [2019] FCA 464
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai V MIEA & ANOR (1994) 34 ALD 346
Subramanian V MIMA (1998) FCA
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age] year old citizen of Vietnam. He arrived in Australia [in] November 2022 and applied for the visa on 14 February 2024.The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia. The applicant was not invited to an interview with the department.
The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
He cannot express his views about human rights and democracy in Vietnam.
He worked for a family business and the authorities treated him unfairly.
He has a debt to loan sharks and they have threatened to hurt him if he does not repay them.
There is no protection for him in Vietnam and he cannot relocate. If he returns the authorities will regard him as a spy.
He has had mental health issues.
Evidence at hearing
The applicant told the Tribunal that he was born in Quang Binh Province in Vietnam. His father died when he was aged [age] and his mother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2403854 (Refugee)

Details

AGLC: 2403854 (Refugee) [2024] AATA 4210
Case: [2024] AATA 4210
Decision Date: 7 August 2024

CaseChat Overview and Summary

The applicant, a national of Vietnam, sought review of a decision not to grant him a protection visa. The applicant claimed he feared persecution upon return to Vietnam due to his involvement in protests against the confiscation of Catholic diocesan land, his fear of loan sharks, and concerns about being perceived as a spy by authorities. He also indicated he had experienced mental health issues.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth). This involved assessing whether he was a refugee within the meaning of section 5H of the Act, or whether he met the complementary protection criterion under section 36(2)(aa) by facing a real risk of significant harm upon removal from Australia. The Tribunal was required to consider the applicant's claims in light of relevant country information and the legal definitions of "refugee," "well-founded fear of persecution," and "significant harm."

The Tribunal considered the applicant's evidence regarding his participation in protests, the alleged violence he experienced, and his subsequent fear of authorities. However, the Tribunal found that the applicant had not provided sufficient evidence to establish a well-founded fear of persecution for reasons of religion or political opinion. Furthermore, the Tribunal noted the applicant's delay in applying for a protection visa and his lack of knowledge regarding protection visa processes, despite having a relative who had previously applied. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under section 36(2)(a) or (aa).

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.CLAIMS AND EVIDENCE A summary of the applicant’s claims as detailed in his protection visa application are as follows:He cannot express his views about human rights and democracy in Vietnam.He worked for a family business and the authorities treated him unfairly.He has a debt to loan sharks and they have threatened to hurt him if he does not repay them.There is no protection for him in Vietnam and he cannot relocate. If he returns the authorities will regard him as a spy. He has had mental health issues.Evidence at hearing The applicant told the Tribunal that he was born in Quang Binh Province in Vietnam. His father died when he was aged [age] and his mother and [a sibling] continue to live in Vietnam. At age [age] he commenced work as a seafarer and did this work for one year. He moved to Australia when he was [age] years of age. When asked why he left Vietnam, the applicant said that it was because he was a member of the Catholic community and in 2021 the authorities took away diocesan land to use for their offices. The applicant joined protests against the confiscation of the land and the authorities used heavy weapons against them. The applicant said that he and his friends were beaten during the protest in the [Town 1] parish tomb area. He protested on 3 occasions. He was beaten at one protest and was able to run away from another. He said that he had bruising and went to the hospital at [a named location] for medication for the pain. Some of his friends were detained by the police however he was not arrested or taken to the police station. The police came to his home a few days after the protest but he was not at home. He mother told him later that the police were looking for him. The applicant said that he was scared so he hid in other locations. When asked for details, he said that he stayed with friends in Ho Chi Minh City (HCM City) for 3-4 months and worked in [a business]. The police did not locate him while he was in HCM City however he decided to go to Australia as he did not have enough money to live on in HCM City. I asked how he financed his travel to Australia. He said that his mother borrowed [amount] VND[1] from the bank. He did not know which bank. His mother also engaged someone to organise his visa. He said that he travelled to Australia by himself and stayed at his [Relative A’s] home, working with him ‘in [a specified business]’. His [Relative A] lives in Australia [but his wife] lives in Vietnam.[1] Equivalent to approximately $[amount] AUD at current conversion rates. I asked the applicant why he waited 16 months to apply for protection. He said that he was arrested in January 2024 and placed in detention and that is when he applied for the protection visa. He claimed that he was unaware that he was unlawful and had no knowledge of protection visas. He had told the Tribunal that his [Relative A] had applied for a protection visa but he did not know the details. When asked when and why his [Relative A] came to Australia the applicant said he did not know. When questioned further, he thought it might be 4-5 years ago. I suggested to the applicant that he would have known about protection visas if his [Relative A] had previously applied for protection. His response was that he only lived with his [Relative A] for a few months.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a protection visa.Catherine WallMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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.ASSESMENT OF CLAIMS AND EVIDENCE Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[3]Identity[3] (1999) 197 CLR 510. The applicant’s nationality is not an issue. He travelled to Australia on a valid Vietnamese passport and has consistently stated in documentation that he is a national of Vietnam. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Vietnam and I have assessed his claims against Vietnam as his receiving country.Credibility The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[4] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5][4] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).[5] (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547