2440136 (Refugee) - [2025] ARTA 1127

2440136 (REFUGEE) [2025] ARTA 1127 (15 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2440136
Tribunal:General Member K Hoang
Date:15 January 2025

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

Statement made on 15 January 2025 at 5:11pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – involvement in protests in Australia – was never harmed in Vietnam – applicant has not engaged in any political activities in Vietnam – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 56, 65, 367, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 2024 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 national of Vietnam, applied for the visa on 10 September 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion.
On 29 November 2024, the Tribunal invited the applicant to attend an in-person hearing on 12 December 2024, at the Tribunal’s Brisbane registry. At the relevant time, the applicant was in detention at Brisbane Immigration Detention Centre.
On 4 December 2024, the applicant requested an adjournment of the hearing for one month, citing that he ‘had a very bad migrane and will not be able to perform well at a hearing’. He further requested for the hearing to be moved to Sydney because his father and ‘wife’[1] wanted to join the hearing, and they could not travel by air due to their disability.
[1] While the applicant referred in his correspondences to his ‘wife’, he confirmed at hearing that they were not married and claimed they were in a de-facto relationship. I have, therefore, referred to this person as his ‘partner’ throughout the decision.
On 5 December 2024, the Tribunal responded to the applicant advising that it had declined the applicant’s request for an adjournment. The applicant was informed that:
The Tribunal will ordinarily not adjourn the Hearing unless it considers that there are good reasons to justify the adjournment. If you wish to seek an adjournment for medical reasons, please provide a doctor’s certificate that states you are not able to attend the scheduled hearing and the reasons why.
Further, the Tribunal informed the applicant it could arrange for his ‘wife’ and father-in-law to attend the hearing remotely via video. The applicant was advised that…

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 2440136 (Refugee)

Details

AGLC: 2440136 (Refugee) [2025] ARTA 1127
Case: [2025] ARTA 1127
Decision Date: 15 January 2025

CaseChat Overview and Summary

The matter under consideration involves an applicant from Vietnam, who arrived in Australia on a student visa but subsequently lost their status and remained in the country unlawfully. The applicant applied for a protection visa, claiming that they left Vietnam due to a fear of persecution by the communist party for participating in protests in Australia. The application was reviewed and ultimately rejected by the Department of Home Affairs, and the applicant appealed this decision to the Tribunal. The Tribunal was tasked with determining whether the applicant satisfied the criteria for a protection visa under Australian law.

The key legal issues for the Tribunal to decide were whether the applicant met the refugee criterion in section 36(2)(a) of the Act, which requires a well-founded fear of persecution, or the complementary protection criterion in section 36(2)(aa), which involves a real risk of significant harm upon removal from Australia. The Tribunal had to assess the credibility of the applicant's claims, the substantiating details provided, and whether there was evidence to support the applicant's assertions of political activities and persecution in Vietnam.

The Tribunal found that the applicant's claims lacked credibility and were not supported by sufficient evidence. The applicant did not provide details such as dates, locations, or specifics of events that would substantiate their claims. Furthermore, the Tribunal noted that the applicant had not engaged in any political activities in Vietnam and had not been harmed in that country. The Tribunal concluded that the applicant did not have a well-founded fear of persecution and did not meet either the refugee or complementary protection criteria. Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

In light of the Tribunal's decision, the applicant's application for a protection visa was dismissed, and the original decision by the Department of Home Affairs was upheld. The Tribunal did not find the applicant to be a person in respect of whom Australia has protection obligations under the relevant sections of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant is now [age] years old. He was born in the Hai Phong province in Vietnam where his family, including his parents and brother still reside. His family own a house in Hai Phong where the applicant grew up. He has not resided in any other part of Vietnam. The applicant completed high school in Vietnam, but left Vietnam when he was [age] years old. At the time, he did not complete his university [studies]. The applicant never worked in Vietnam. The applicant arrived in Australia on [date] August 2016 to study. According to his protection visa application, he studied [at] [a] College and later at [a university]. At hearing the applicant confirmed that his student visa ceased in 2017. The applicant said that he moved from Adelaide to Sydney, but he could not obtain certificate of enrolment to study, and he lost his visa. The applicant confirmed that he was unlawful until the time he made his application for protection. He said that he had been working [in] Sydney in order to support himself. The applicant confirmed that he had lodged a partner visa application which was found to be invalid. The applicant has not travelled back to Vietnam since arriving in Australia.RELEVANT LAW The relevant law governing the criteria for the grant of a protection visa are set out in the Attachment. CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department In his application for a protection visa, the applicant made claims that can be summarised as follows:·he left the country because the communist party will harm any person who protests against them;·he saw police hit ordinary citizens when they did not like these people; ·he fears being arrested, terrorised, locked up and tortured to death if he returns to Vietnam because he joined in a protest against the Vietnamese communist party and his photos were taken by a secret agent from the Vietnamese government who operates in Australia; ·his family in Vietnam have advised him that the police have visited his house asking when he will return, and they wanted to question him about why he joined the protest; and·he cannot move to another part of Vietnam because there is only one party in Vietnam. The applicant was not offered an interview with the Department. On 27 September 2024, the Department sent the applicant an invitation to provide further information in respect of his claims pursuant to s 56 of the Act. The invitation advised the applicant that his claims lacked substantiating details, such as dates and locations, and details of events, and that no further evidence to support his claims had been provided. The applicant was asked to provide further information and evidence in respect of his political opinion and activities in Vietnam or in Australia.

Evidence

Evidence Before The Court

The delegate found that the applicant’s claims are not genuine and lacked credibility. The delegate was not satisfied that the applicant is a refugee under s 5H(1) and found he is not a person in respect of whom Australia has protection obligations under s 36(2)(a). Nor was the delegate satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act. As such, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). Evidence before the TribunalPre-hearing submissions The applicant provided the following materials prior to the hearing:·copies of Australian passports belonging to his partner’s sister, [Ms A] and his partner’s father Mr [B]; ·translated marriage certificate in respect of [Ms A]; ·copies of a driver licence, [Country 1] passport and pension card, belonging to his partner, [name];·a medical letter stating that the applicant’s partner had a microarray analysis completed;·a Visa Entitlement Verification Online (VEVO) check in respect of his partner; ·a translated copy of his partner’s birth certificate and a copy of the original;·a copy of a passport belonging to his partner’s sister son, [Master C];·a birth certificate in respect of [Master C];·a commonwealth statutory declaration from the applicant’s ex-roomate in support of his relationship with his partner;·a commonwealth statutory declaration from the applicant’s partner’s sister in support of their relationship; ·a translated copy of the applicant’s birth certificate;·a copy of the delegate’s decision record in respect of the applicant’s application for protection and the Department’s notification letter;·a ‘Form 888 – Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ from the applicant’s partner’s sister;·a ‘Form 888 – Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ from the applicant’s ex-roommate [name];·translated and original copies of the applicant’s household registration booklet;·national ID documentation in respect of the applicant’s parents in Vietnam;·a copy of the applicant’s driver’s licence;·a document from [a bank], confirming that as of 23 October 2024, the applicant’s mother has 250 million Vietnamese Dong (VND) in three bank accounts;·a statement from [a] bank, dated 22 October 2024, showing that the applicant’s mother has 1,040,000,000 VND or the equivalent of $25,090 US dollars (USD) held in a number of term deposit accounts;·a statement from [a] Bank certifying that as of 24 October 2024, his mother had 2,000,000,000 or the equivalent of $116,090.09 Australian dollars (AUD) held in two accounts;·a statement from [a] Bank dated 23 October 2024, showing that his mother has a total of AUD $26,194.21 in a term deposit; ·a copy of the applicant’s Vietnamese passport; and·a signed statement from the applicant in support of his relationship with his partner, undated.a.The applicant explained that the had submitted the above information because his partner’s sister has recently married a [Country 1] man and has to return to [Country 1] in the foreseeable future. The applicant submitted that his partner’s sister has been looking after his partner and her father in the applicant’s absence. He is worried that if his partner’s sister were to leave Australia, there would be no one to look after his partner and her father. He stated that this situation makes him worried. The applicant claimed that his mother has enough money to be able to support him and his partner in Australia.

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.Dates of hearing(s): 12 December 2024Representative for the Applicant: UnrepresentedAttachment — Criteria for 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. 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

Ratio Decidendi

Legal Principle Established

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