2407191 (Refugee) - [2024] ARTA 686

2407191 (REFUGEE) [2024] ARTA 686 (18 NOVEMBER 2024)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Home Affairs

Tribunal Number: 2407191
Tribunal:General Member R Timms
Date:18 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 18 November 2024 at 10:35 am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion and political opinion – participated in protest against appropriation of church land – summoned, threatened and monitored – environmental disaster affected mother’s business – mother intimidated after applicant’s social media activity – delay in applying for protection – applied after student visa cancelled – no political membership in home country and anti-government views formed in Australia – no past harm claimed in application and unfavourable inference drawn for late claims – allowed to complete education and travel – application made with wife and child – now divorced with separate review application – separation from son not for refugee criteria reason or amount to significant harm – returned failed asylum seeker and capacity to subsist – work skills and experience – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2), (4)(b), 65, 367A, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
EZC18 v MHA [2019] FCA 2143
Guo Wei Rong v MIEA (1996) 64 FCR 151; 40 ALD 445

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF 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 18 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a national of Vietnam, applied for the visa on 22 May 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3. While the applicant’s original protection visa application was made together with applications by the applicant’s wife and child, the applicant and his wife have since divorced, and the Tribunal is now reviewing this review application by the applicant separately from his wife and child’s applications.

4. The applicant appeared before the Tribunal at hearing held on the dates of 6 June 2024 and 29 July 2024, to give evidence and present arguments in relation to his own review application. At hearing, the Tribunal also received oral evidence from [Mr A] and [Mr B], who both appeared as witnesses for the applicant. The Tribunal hearing was conducted with the assistance of interpreters in the Vietnamese and English languages.

5. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional…

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 2407191 (Refugee)

Details

AGLC: 2407191 (Refugee) [2024] ARTA 686
Case: [2024] ARTA 686
Decision Date: 18 November 2024

CaseChat Overview and Summary

In this case, 2407191, a Vietnamese national sought a review of a decision to refuse them a protection visa. The applicant had participated in protests against the appropriation of church land in Vietnam, leading to summons, threats, and monitoring. Additionally, the applicant's mother experienced business difficulties and intimidation after the applicant's social media activities. The applicant applied for the protection visa after their student visa was cancelled. The applicant claimed to have no political membership in Vietnam, but developed anti-government views while in Australia. The applicant did not claim past harm in their application, and an unfavourable inference was drawn for the late claims. Despite this, the applicant was allowed to complete their education and travel, and applied with their wife and child, who are now divorced and have separate review applications. The separation from the son was not due to reasons relevant to the refugee criteria and did not amount to significant harm.

The court needed to decide whether the applicant met the definition of a refugee under the Migration Act. Specifically, it had to determine if the applicant had a well-founded fear of persecution for a Convention reason, and if the applicant's claims were credible and genuine. The court also had to consider the timing of the application, the applicant's capacity to subsist in Vietnam, and the availability of internal protection alternatives.

The court affirmed the decision under review. It found that the applicant's claims were not credible, particularly due to the lack of past harm and the unfavourable inference drawn from the late claims. The court considered the applicant's capacity to subsist in Vietnam, noting their work skills and experience, but ultimately found that the applicant had not demonstrated a well-founded fear of persecution. The court also found that the separation from the son did not constitute significant harm relevant to the refugee criteria. As such, the decision to refuse the applicant a protection visa was affirmed.

No further orders were made.

Orders