1413097 (Refugee)

[2015] AATA 3508

1413097 (Refugee) [2015] AATA 3508 (5 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413097

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Sean Baker

DATE:5 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 October 2015 at 7:51pm

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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] July 2014. The applicant provided a copy of the delegate’s decision with his application for review.

3. The applicant appeared before the Tribunal on 30 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant’s mother, and [Mr A], his step-father. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

10. The issue in this case is whether the applicant will be persecuted or significantly harmed for reasons of his religion or for any other reason. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity and nationality

11. The applicant presented his Vietnamese passport, a copy of which is on the Departmental file. On the basis of this and his evidence at hearing I accept that the applicant is a national of Vietnam and is who he claims to be. I find that Vietnam is his country of nationality and his receiving country. On the basis of his evidence and with no evidence to the contrary I find that the applicant does not have a right to enter and reside in a third country.

    Findings on the applicant’s claims

12. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

13. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims she or he has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

14. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

15. Having said that, I found the applicant, and witnesses, to be generally credible, and where I did not I have set out why not below.

16. On the basis of his evidence I accept that the applicant was born on [date] in Kien Giang, Vietnam to a Buddhist family, that in 2002 his parents separated and his father moved out of the family home. I accept on the evidence in his visa application that he speaks, reads and writes Vietnamese and English, and identifies as ethnically Vietnamese. I accept his claim that his father was rarely present in the home and his mother cared for them. I accept that his father moved out to life with another woman and the applicant and his [sibling] remained with their mother. I accept that they supported themselves by his mother selling [products] from the home and the support of his grandmother.

17. On the basis of his evidence and that of his mother I accept that his mother was taking care of her sister who was affected by [a medical condition], and that the applicant’s aunt was visited by Christian preachers/believers who gave emotional support to her, and that the applicant’s mother also spent time with these people when she was able to.

18. Although no country information has been provided in support, I am willing to accept his claims that in 2000 when President Clinton visited Vietnam in 2000, police raided some religious services and arrested a pastor, confiscated bibles and threatened Christian worshippers, and because of this his mother was worried and scared and asked the Christians who were coming to the house to stop coming.

19. I accept that the applicant’s father may have been upset about the Christian preachers coming to the house to visit the applicant’s aunt, although I am not prepared to accept that this was purely or necessarily on the basis of religious belief. I accept that the applicant’s father may be a strict Buddhist, expected them to attend the temple and did not recognise other religious groups. I accept that the father may have become abusive towards the applicant’s mother when she urged religious tolerance. I accept that the father may have threatened to report the visits of the preachers to the local authorities which may have also been a reason the applicant’s mother asked the preachers to stop attending the house.

20. I accept that the applicant, his mother and [sibling] travelled to Australia on student visas, and at the time of arrival the applicant was [a child].

21. I accept on his evidence and that of his mother that since 2002 they have had little contact with the applicant’s father, and the last time he had contact or saw him was at the airport in December 2006 before the flight to Australia. The applicant gave evidence that he did not have a close relationship with his father or anyone from his side of the family. I accept this evidence and that the applicant’s father lived sometimes in the same city and sometimes in other cities. I accept that the applicant has had no contact with his father since the applicant arrived in Australia. On the evidence of the applicant’s mother, I also accept that she has had no contact with her ex-husband, nor, on the evidence before me, has the applicant’s [sibling] had any contact with their father. I accept that his father has not provided any financial support to them since the divorce.

22. The applicant travelled to Australia with his mother and [sibling] and completed high school. I accept that over his time in Australia he came into contact with people from different cultural and religious backgrounds and learned to accept and respect people, and that in this time his mother slowly made contact with people in the Australian Vietnamese community who were Christians. I accept that the applicant’s mother met her current husband, [Mr A] in May 2012. I accept that the applicant sees [Mr A], his step-father, as a father figure, and that he, his [sibling] and mother increased their interest in Christianity at this time.

23. On the basis of [Mr A]’s evidence I accept that he is a [Christian] believer who attends church with some regularity. I accept that his mother is active in their [church] [community].

24. [In] June 2012 the applicant’s mother returned to Vietnam as her visa expired. The applicant and his [sibling] remained with [Mr A] and [Mr A] provided the applicant with support and guidance. [In] November 2012 [Mr A] travelled to Vietnam to ask the applicant’s grandmother for permission to marry the applicant’s mother. I accept that they may have had questions asked of them about the marriage and their religious beliefs.

25. I accept, on his evidence, that [Mr A] was in Vietnam for 7 days, in Kien Giang, that he found it a little bit intimidating as he was the only westerner there, that he did not go around talking about religion, but it is very Buddhist there. He said that he was sort of warned not to talk about religion. He considered that there were not a lot of other Christians there from what he saw and he has heard that ones over there are a bit underground. I asked if this was in Kien Giang or throughout Vietnam and he said that he had not travelled much. I asked if he had had any contact with his wife’s ex-husband and he said he had not. insofar as this evidence indicates it, I accept that, as the applicant claims in his statement, that [Mr A] became aware of the serious problems faced by Christians and people from minority groups in China and learned of some of the incidents involving violence and imprisonment against Christians.

26. The applicant’s mother returned to Australia in June 2013 and married [Mr A] in August 2013. She converted to Christianity on the day of the wedding and the applicant decided to convert to Christianity as well. The applicant’s mother applied for and was granted a spouse visa. The applicant was [an adult] at the time, but was in full time study and essentially dependant on his mother and [Mr A] at this time.

27. The applicant has explained the circumstances around the ceasing of his student visa and his period of unlawfulness, and I accept his explanations. The applicant was a child when he was granted his student visa, his mother, his guardian, was offshore when his student visa ceased, and the applicant has indicated by his actions in voluntarily approaching the Department that he has acted in good faith.

28. At the Departmental interview and at the hearing the applicant discussed his faith. On the basis of this discussion I am satisfied that the applicant has converted from Buddhism to Christianity. I accept that he attends [a] Catholic Church in [Australia] for the Vietnamese service on Sundays, alternately with his mother and his [sibling]. I accept that his step-grandmother, [Mr A]’s mother, teaches him about Christianity. I accept that he was baptised [in] April 2015 at Easter time and has been confirmed. He takes communion.

29. The applicant does not go to church at other times and is not involved in other activities at the church or with a church group. I explored why this was and the applicant claimed that it was because the church is far from where he lives, he does not drive and the service on Sunday is the only service in Vietnamese. Later I explored with the applicant any other aspects of his faith and how he chooses to engage and explore that. He said that if he returned to Vietnam he would preach about what he had learned about Christianity here. I asked if he preached in Australia and he said he did not. I noted that I may not accept that he would preach in Vietnam or be more active than he currently is.  He said he really wanted to preach. He said he did not do it now because of the language barrier. I noted that there were plenty of Vietnamese people in [the city] to whom he could preach, but he did not choose to do so. He said that Catholicism is very strong here and that in Vietnam people are not able to express themselves. I accept that the applicant is a Catholic follower, but I do not accept that he has undertaken any other activities in Australia, including preaching. He claims this is because of language and distance. I do not accept that these reasons have completely limited the applicant’s ability to explore, develop and be as active as he chooses in his Christina faith, which he claims to have converted to at the time of his mother’s wedding. I note that he has also attended [number] years of school in Australia, and has indicated on his protection visa application that he speaks, reads and writes English. I accept he may not be confident in English, but I do not consider that transport or some language barriers explain why he has not preached as he claims he wishes to. I note that there is a large Vietnamese community in [the city], I accept perhaps not near the applicant but he would have choices for travelling there. On the evidence before me I find that the applicant has not engaged in further activities or developed his faith because he does not wish to, and I do not accept that he has a genuine intention or desire to preach. He has been a convert to Christianity for some time now and despite only recently being baptised I do not accept that this has impeded his ability to engage further in his chosen faith.

30. The applicant has claimed that his grandmother and family would not approve of his mother’s interest in Christianity. I do not accept this claim. It was not raised at the hearing, and the applicant said at hearing that if he returned to Vietnam he would have the support of his grandmother and aunty, which I consider goes against this claim. I note also that the applicant’s aunty was visited by and supported by Christians until his mother told them not to visit.

31. At hearing I explored the relationship of the applicant with his father. As above, he confirmed that he has had no contact with his father since the divorce in 2002, when his father entered a relationship with another woman with her own family (despite the applicant not mentioning it I am prepared to accept that his father came to the airport on a further single occasion when the applicant, his mother and [sibling] departed for Australia in 2006). He said he had had no contact as he was scared. I am prepared to accept that the applicant is fearful of a father he has had no significant contact with in 13 years and who may have been a very poor father who argued with his mother, but I do not accept that he is scared of his father for the reasons he claims. The applicant has provided evidence, which I accept, that his father has had no contact with the applicant, his mother or [sibling] since at least 2006 when he came to see them at the airport. His evidence is that his father did not have any contact with any of them from the divorce in 2002 until this one event in 2006. Since 2006 the applicant has given evidence that there has been no contact with or financial support from his father. He said he had been given no fatherly love since he was little and his parents would often argue and fight with each other. I accept this. This evidence, I find, demonstrates that the applicant’s father has not taken any interest in or been involved in the applicant’s, his mother’s or his [sibling]’s life in a meaningful way since 2002, some 13 years ago. There has been no contact. I have considered whether the applicant’s father’s threat to report the Christian preachers who visited the applicant’s aunt prior to 2002 means that he may or is more likely to report the applicant or the applicant’s mother or [sibling] for converting. I do not accept that it does. This threat was made many many years ago, in a situation where, as the applicant said, his father and mother were fighting a lot – his father is now married to another woman with other children. I find he has moved on, I find that this past threat has no bearing and does not increase the risk of his father reporting him or his mother or [sibling].

32. The applicant has claimed that his father somehow found out that his mother wanted to marry a Christian and became concerned about the applicant and his [sibling] converting to Christianity, and the applicant ‘No longer being his son’. People associated with his father contacted his mother whilst she was in Vietnam and were abusive and threatened to report her to authorities if she converted or allowed them to convert. He further claims that [Mr A] became concerned for the safety of the applicant’s mother and advised her to apply for a visa to Australia, and these things made the applicant fearful and scared to return as he did not know how everyone in Vietnam would react to the news that his mother, he and his [sibling] had increased interest in Christianity. He claims that at the time he was considering returning to Vietnam in September 2013, his grandmother called to tell his mother that it will be very dangerous for the applicant to go back as his father has reported him, his mother and [sibling] to the authorities as they have converted to Christianity and have brought a person from Australia to attend the house in Vietnam to preach Christianity and equal rights. He claims that apparently a few police officers have come by his grandmother’s house and asked questions about the whereabouts of his mother, [sibling] and the applicant as well as [Mr A] who was described as a priest from Australia. I do not accept these claims for the following reasons.

1. As I have found above, the applicant’s father has not taken any interest or made any contact with the applicant, his mother or [sibling]. On this evidence, consistent from the applicant and his mother at hearing, and in the applicant’s statement, I do not accept that the applicant’s father would have any interest in the applicant’s, his mother’s or his [sibling]’s conversion. I have considered whether the claims that he would be concerned because of family shame, that his ex-wife was marrying a Caucasian Christian, the applicant would ‘no longer be his son’, because he is a devout Buddhist and his brother or brothers, the applicant’s uncle or uncles are Buddhist monks would increase the likelihood that he would be interested in and take steps because of the conversion but I do not believe so. I find that the applicant’s father has had no interest or engagement in his son’s life for a very long period of time, it has been more than half the applicant’s life since the divorce and any meaningful contact or involvement with his father, and I find that the applicant, his [sibling] or mother changing religion, or any of the associated factors mentioned above, on the evidence before me, would not have any impact on that.

2. Further, the country information does not support the claim that Buddhist families react with hostility or shame if members of the family convert to Christianity. As I noted to the applicant, according to the United States State Department’s 2013 report on International religious freedom – Vietnam, published 28 July 2014, ‘There were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.’[1]

   [1] US State Department, 2013 Report on International religious freedom – Vietnam, ( 28 July 2014)

3. For these reasons I do not accept that, even if he has found out, that the applicant’s father was or is concerned about the applicant and his [sibling] converting to Christianity, and the applicant ‘No longer being his son’, his ex-wife marrying a Caucasian Christian. For these reasons I do not accept that people associated with his father contacted his mother whilst she was in Vietnam and were abusive and threatened to report her to authorities if she converted or allowed them to convert. Even if I accept that [Mr A] was concerned about the safety of his now wife, I consider that this was because of his unfamiliarity with Vietnam and not from any objective direct or indirect threat to her. I do not accept therefore that these things made the applicant fearful and scared to return for these reasons. I find on the country information above that people in Vietnam will not be at all concerned about his, his mother and [sibling]’s interest in and conversion to Christianity because there were no reports of societal abuses based on religious affiliation, belief or practice.

4. The applicant claims that he has been reported to the authorities by his father, along with his mother and [sibling] for conversion to Christianity and for bringing a person from Australia to attend the house in Vietnam to preach Christianity and equal rights. The applicant claims that apparently a few police officers have come by his grandmother’s house and asked questions about the whereabouts of his mother, [sibling] and the applicant as well as [Mr A] who was described as a priest from Australia.

5. The country information does not support these claims. Country information which I discussed with the applicant indicates that

   1.3.2 The constitution allows for religious freedom, but in practice the government restricts this right. The government has registered an increased number of religious groups and generally respects the religious freedom of those registered groups, as long as they comply with regulations. In spite of some improvements in recent years, there are ongoing problems with regard religious freedom.

   1.3.3 The government restricts activities by independent religious groups and of individuals who are regarded as a threat to the Communist Party of Vietnam (CPV) especially those involved in religious freedom advocacy. Many unregistered religious groups report abuses, with a particularly high number of reports coming from the Central and Northwest Highlands.

   1.3.4 A specialised religious police force is utilised to enforce vaguely defined national security laws and suppress independent Buddhist, Protestant, Hoa Hao, and Cao Dai activities. Reports of increased tensions with the Catholic Church have emerged as the authorities seek to stop the growth of ethnic minority Protestantism and Catholicism through discrimination, violence and forced renunciations of their faith despite the practice of forced renunciations of faith being officially banned by Decree 22 in 2004.

   1.3.5 In January 2013, Decree 92 into effect which further extended controls on religious groups. Unrecognised religious organisations must register their places of worship, but this only allows the privilege to operate in the administrative locality. Religious groups that operate outside of official, government-registered and government-controlled religious institutions are subjected to monitoring, intimidation, harassment and sometimes violent enforcement by the authorities.

   1.3.6 In general the restrictions placed on members of registered religious groups are not sufficient to warrant international protection. Persons associated with unregistered religious groups, particularly members of independent Buddhist, Protestant, Hoa Hao, and Cao Dai groups generally face more difficulties and restrictions on religious freedom than members of registered communities. The levels of ill-treatment suffered will vary depending on region, ethnicity, involvement if any in religious freedom advocacy and whether the person is perceived to be politically active against the government. Each case must be assessed on its own merits taking full account of the particular circumstances and profile of the person and any past persecution.[2]

   [2] UK Home Office, Country Information and Guidance – Vietnam: Religious minority groups, December 2014.

6. Further information discussed with the applicant indicates that:

   ‘The US government estimates the total population at 92.5 million (July 2013 estimate). More than half of the population is Buddhist, with the overwhelming majority of those Buddhists (most of whom are of the majority ethnic group Kinh or Viet) practicing Mahayana Buddhism. Approximately 1.2 percent of the population, or about one million people, almost all from the Khmer ethnic minority group, practices Theravada Buddhism. Roman Catholics constitute 7 percent of the population. Catholicism is growing, with over 6 million adherents in 26 dioceses across the country. Cao Dai, a religion combining elements of many religions, is practiced by 2.5 to 4 percent of the population. Hoa Hao followers constitute 1.5 to 3 percent of the population. Estimates of the number of Protestants range from 1 to 2 percent of the population. Some Protestant denominations are officially recognized at the national level; others are registered locally.[3]

   [3] US State Department, 2013 Report on International religious freedom – Vietnam, ( 28 July 2014) see also Viet Nam News, ‘Nation’s Baha’I community gets religious recognition’, 22 March 2007, >

   I discussed this country information with the applicant. I noted that I considered he could return and practice as a Catholic in Kien Giang and that the country information may indicate he could do so without any threat of persecution or significant harm. I noted to him that I had found at least three Catholic churches in Kien Giang, one of them dating to before 1945, that it was within the Diocese of Long Xuyen.[4] I noted that all of this information caused me to doubt the applicant had or would be reported to the authorities, because I did not think they would be interested in him, his mum or his [sibling]. I noted that I considered that he might only face a risk of harm if he was associated with an unregistered religious group, was of a minority ethnicity or came from the highlands, was involved in religious freedom advocacy or perceived to be politically active against the government. I noted that I may take the view that he did not fit into any of these categories. He said that he had heard that Catholics were persecuted have also had regard to the websites provided by the applicant to the Department. These detail arrests, attacks and imprisonments by the authorities against religious minorities. I note that these are largely in the North west of the country, and involve ethnic minorities or church groups or pastors protesting against government actions such as land seizures. I noted to the applicant that I may prefer the country information quoted above because it is more authoritative and includes reports from a range of sources rather than reports from one source or about one event.

   [4] Catholic Bishops’ Conference on Vietnam, Dioceses – Long Xuyen,

7. I have had regard to the country information, as well as the evidence of the applicant and the witnesses. On weighing this information I find that I do not accept that the applicant’s father would report the applicant or his mother or [sibling] to the authorities, for all the reasons above and because, significantly, I consider that the country information indicates that the authorities would not be interested in the applicant, his mother and his [sibling]. I do not accept that the applicant’s father or anyone else has characterised [Mr A] as having preached about religious freedom or being described as a priest for all of the reasons above, and because [Mr A]’s evidence did not support that he preached or interacted to any extent with anyone in Kien Giang. I do not accept that the applicant, his mother or [sibling] have a profile which would lead to adverse attention from the authorities. I find that even if the applicant’s father had reported them to the authorities, which I do not accept he has done, the authorities would have no interest in the applicant, his mother or [sibling]. For all of the above reasons I do not accept that in September 2013 or at any time the applicant’s grandmother called to tell his mother that it will be very dangerous for the applicant to go back as his father has reported him, his mother and [sibling] to the authorities as they have converted to Christianity and have brought a person from Australia to attend the house in Vietnam to preach Christianity and equal rights. On all of the above I further do not accept that a few police officers have come by his grandmother’s house and asked questions about the whereabouts of his mother, [sibling] and the applicant as well as [Mr A] who was described as a priest from Australia. I consider that these claims are inconsistent with the independent evidence regarding the situation in Vietnam which I discussed with the applicant.

   Will the applicant be harmed on return to Vietnam?

8. As raised with the applicant at hearing, I note that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

9. The applicant fears that he will be reported to the authorities as a Catholic convert. On the basis of the country information set out above, I find that there is no real chance that the applicant will be harmed in any way for reasons of his conversion to Catholicism. I do not accept that the applicant’s father or anyone else has the interest or motivation to report him to the authorities, nor that if they did, the authorities would care. As above, I do not accept that his father’s family being devout Buddhists has any impact on this or increases the risks of the applicant being harmed.

10. I do not accept that the applicant will be reported to or come to the attention of or be harmed in any way by the authorities because [Mr A], a Christian, visited his mum, or because Christians used to visit the applicant’s aunt when he was growing up.

11. I do not accept that the local authorities would consider that the applicant has anti-government opinions because he no longer has faith in Buddhism. He claimed that Buddhism is the state religion of Vietnam, which is not the case – it is the most widely practiced religion, but is simply a recognised religion, as is Catholicism. The applicant also claimed he might be imputed with anti-government opinions as he would be returning from Australia and has heard about the government in Vietnam from outside Vietnam. As I explained to him, many Vietnamese who have lived all or much of their lives in Western countries are returning as the Vietnamese economy improves, and they are not being treated in this manner. I do not accept that he would be considered a dissident or as having any anti-government opinions. He did not explain any other basis why he might be perceived as such and I do not accept that he would be. Whilst I accept that Article 88 is used to silence critics of the party, such as journalists and bloggers and other dissidents, I do not accept that the applicant falls within any of these groups or has a profile which would mean he would be charged under this provision.

12. As above, I do not accept that the applicant has preached or has a genuine intention or desire to preach or does not do so for the reasons claimed. He was unable to explain why he would preach in Vietnam. For these reasons I do not accept that the applicant would preach if he returned to Vietnam.

13. The applicant also claims that his father or uncles may kidnap, assault or even kill him, or force him to convert back to Buddhism. I find these claims to be completely speculative, not based in anything other than perhaps the applicant’s apprehension. The evidence before me indicates that the applicant’s father has no or little interest in him, I find that there has been no contact between the applicant, his mother and [sibling] on one hand, and his father and uncles on the other. The applicant, apart from speculation, has not provided a clear or cogent reasons or reasons why his father and uncles would do this. I do not accept that there is any chance of the applicant’s father or uncles kidnapping, assaulting, killing him or forcing him to convert for any reason whatsoever. On the basis of the country information that there were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice, I do not accept that the local people will harm the applicant or have any interest in his religious conversion.

14. The applicant provided evidence that his father may have moved closer to the applicant’s family home in Kien Giang. Even if this is the case I do not accept that this leads to any chance or increased chance of harm for any reason.

15. On the information before me I find that the applicant can return to Vietnam, to Kien Giang, part of a Catholic Diocese, and worship and practice his Catholic faith there and will not face any risk of harm.

16. I find on the basis of the above that there is no real chance, that is, one that is more than remote or far fetched, that the applicant will suffer serious harm amounting to persecution by the authorities, his father, uncles, local people or anyone else for reasons of his religion or any other Convention ground. He is not a refugee.

17. I do accept that the applicant has a high degree of emotional dependence on his mother, and his [sibling] and [Mr A]. I accept that if he returns to Vietnam he will be left on his own in a country where he has spent little time. I accept that he is fearful and scared to return for these reasons, not for the reasons claimed.

    Complementary protection

18. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Vietnam and the Tribunal therefore finds that Vietnam is the ‘receiving country’ for the purposes of s.5(1).

19. For the reasons set out above, the Tribunal has not accepted that the applicant has been reported to the authorities for his conversion, that the police have attended his grandmother’s place, that he will be harmed by the authorities, his father or uncles or local authorities.  I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Vietnam now or in the foreseeable future on the basis of his religion.

20. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[5]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason relating to his religion or for any other reason as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    [5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

    Conclusion

21. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

22. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. 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).

    Ministerial intervention

24. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

25. The applicant and his representative set out the considerable compassionate circumstances in this case. The applicant came here as a [child]. He has spent a large part of his life in Australia. Significantly, after his father left his mother, the applicant, his mother and [sibling] are clearly a closely bonded unit, and his return to Vietnam would affect his mother, an Australian permanent resident, as well as his step-father, a Citizen. The applicant, if he had had migration advice, may have been successful as a dependant on his mother’s spouse application. He has been a full time student and after successfully completing year 12 he wished to study [further] but was unable to enrol due to the expiry of his visa.

1. I consider that the length of time the applicant has spent in Australia, largely as a child, the unfortunate family circumstances, and my observations of the applicant, his mother and step-father as a close family unit are worthy of consideration. Removal of the applicant may lead to undue hardship to him, his mother and his step-father. I have considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Sean Baker
   Member