2008506 (Refugee) [2021] AATA 4447 (1 November 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division 
CASE NUMBER:	2008506 
COUNTRY OF REFERENCE:	Vietnam 
MEMBER:	Mr S Norman 
DATE:	1 November 2021 
PLACE OF DECISION:	Sydney 
DECISION:	The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 November 2021 at 9:40am

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to government authorities – non-appearance before the Tribunal – decision on the paper – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 426A, 499 
Migration Regulations 1994, Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of Vietnam, applied for the visa on 17 October 2019. The Department delegate’s decision was lodged with the Tribunal. 
Criteria for a protection visa
2.  	The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Mandatory considerations
3.  	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.
CONSIDERATION OF Claims and evidence
4.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 
5.  	By hearing invitation letter dated 14 October 2021 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 November 2021. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. 
6.  	By email dated 19 October 2021, the applicant advised that he would ‘not participate in the hearing, and consent[ed] to the Tribunal making a decision on the paper without taking further steps [to allow him] to appear’. 
7.  	Therefore, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 
The applicant’s claims: 
8.  	The applicant was not afforded a Department interview, though he was offered multiple opportunities to lodge evidence and submissions. That being said, and in brief, the applicant claimed: 
•	He is against the Vietnamese authorities; and 
•	He fears being persecuted and potentially killed by the authorities 
9.  	The applicant had referred to a statement he was preparing, however, the Tribunal was not aware of any further statement being lodged. 
Assessing the applicant’s claims: 
10.  	The applicant lodged a photocopy of the bio-data page of his passport, and the Tribunal accepts he is a citizen of Vietnam, and that Vietnam is the applicant’s receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).  That said, the applicant did not provide sufficient detail to satisfy the Tribunal (for instance) that he was against the Vietnamese authorities; or that he would be imputed with an adverse anti-Vietnamese authorities view should he return. Neither did he provide sufficient detail to satisfy the Tribunal he had a real chance of suffering any material harm in Vietnam. 
11.  	It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596);  and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.  
12.  	That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm. 
Finding: 
13.  	For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 
14.  	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
15.  	The Tribunal affirms the decision not to grant the applicant a protection visa. 

Mr S Norman 
Member