1420558 (Refugee)

[2016] AATA 3693

1420558 (Refugee) [2016] AATA 3693 (13 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420558

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Penelope Hunter

DATE:13 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2016 at 4:44pm

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 on [date] March 2014 on the basis that he was a Catholic and faced persecution in his home country. The delegate refused to grant the visa on [date] December 2014.

3. The applicant appeared before the Tribunal on 4 April 2016 to give evidence and present arguments. 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’).

   MINISTERIAL DIRECTION

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The applicant was born on [date] in Ca Mau City, and claimed not to have lived anywhere else in Vietnam. He arrived in Australia on a 573 Student visa [in] November 2009. His visa was valid until [in] July 2012 and thereafter he remained in Australia unlawfully until he lodged his Protection visa application. In his initial application filed [in] March 2014, the applicant provided only a brief description of his claims. He claimed to have left Vietnam to escape political and religious persecution as he was a Christian and was not able to practice his faith openly and preach the news of the gospel. He stated that the authorities in Vietnam do not tolerate active Christians and impute them with having adverse political views. He had managed to avoid harm in Vietnam by not openly practicing his faith and preaching in a covert manner, however this practice was always extremely dangerous.

11. In a statutory declaration sworn [in] June 2014, and submitted to the Department, the applicant made the following further claims;

    ·He fears returning to Vietnam on the basis of his religious activities, his imputed political activity and because there are formal charges against him.

    ·He was born a Buddhist but initially became interested in Christianity at the age of [date] during his secondary studies and he was introduced to Christianity by a school friend [name] who secretly used to preach to him. He also attended his local Catholic Church, initially on an irregular basis he would attend approximately 3 to 4 times per month including participating in Bible studies and attending masses.

    ·At the age of [date] he was secretly baptised at [name] Church, located at Bac Liew, Vietnam. After his Baptism his interest in Christianity grew. He was an enthusiastic follower and he used to preach the gospel and disseminate religious material.

    ·[In] April 2009, he was detained by the authorities while undertaking public preaching at [location], Ninh Thuan Province. He received numerous charges relating to preaching and political activities. The court prescribed a fine and a warning that he should he engage in further preaching activities he would be prescribed a custodial sentence. After his release from detention he continued to be monitored by the local authorities and for this reason he had no choice but to cease all religious activities.

    ·Since his arrival in Australia he has been attending various local Churches. His current parish is [name], Church, [suburb]. He continues to participate in many aspects of the Church religious life including Bible studies and outreach activities.

    ·If he were to return to Vietnam and continue to undertake his religious activities in the open and unrestricted manner he does in Australia he would be immediately detained.

    ·As the applicant has been previously charged he would be continually monitored by the authorities on his return to Vietnam. This makes it impossible for the applicant to return to Vietnam and undertake preaching activities. He would be in breach of the conditions of his release, immediately detained and face the prospect of a lengthy custodial sentence and mistreatment whilst in custody.

    ·He did not apply for protection earlier as he feared that he would be immediately deported on the basis of having a record in his country and he was only recently reassured by friends and received legal advice that his claims would not be divulged to the Vietnamese authorities.

12. The applicant attended an interview with a delegate of the Minister [in] November 2014. At that interview the applicant provided to the delegate a copy of his Baptism book, which indicated that he was baptised [in] August 2002 and translated copies of Minutes of Administrative Violations by the applicant [in] February 2008 and [in] April 2009.  The applicant has filed with his application to the Tribunal a copy of the decision of the delegate. The Tribunal has listened to a recording of the interview with the delegate and is satisfied that the information contained in the delegate’s decision is an accurate reflection of the information provided by to the delegate at the interview. The delegate records that the applicant claimed he was baptised by his [relative] when he was [age] and then started to attend Mass at a registered church in Bac Liew every Sunday with a school friend at age [age]. The applicant raised a further claim that he would be forced to join the army if he returned to Vietnam and this would prevent him from continuing his studies and conducting his religious preaching.. The delegate did not consider the applicant to be credible and found numerous inconsistencies between the applicant’s written statutory declaration and his statements at interview. The applicant was further found not to demonstrate a knowledge of Catholicism commensurate with someone who had attended church for the past seven years.

13. The Tribunal received an application for review of the delegate’s decision from the applicant [in] December 2014.  [In] March 2014 the Tribunal received from further submissions from the applicant’s agent including photographs of the applicant undertaking church activity, a certificate of baptism and confirmation dated August 2014, a certified translated copy of  Catholic household book, statutory declaration of the applicant dated [in] February 2016 and 62 pages of country information confirming mandatory military service in Vietnam and discussing the situation for some Christians in Vietnam.

14. In the statutory declaration of [date] February 2016 the applicant set out the following claims;

    ·He was claiming persecution on the grounds of religion and implied political beliefs as well as complementary protection.

    ·He would be obligated to undertake compulsory military service once he returned to Vietnam. He objects to undertaking military service on the basis of Vietnamese communist authorities mistreatment of Christians and the unreasonable limitations they impose upon Christian churches in their activities including preaching.

    ·He objects to serving a regime that persecutes Christians and other religious minorities. If he was forced to undertake military service he would have to deny that he is a Christian and desist from practicing the core tenants of his faith during the entire period to escape sanction.

    ·If he was to pronounce the basis for his objection he would be imputed with having adverse political views and was be subjected to mistreatment, sanctions and fears that he will be imprisoned for lengthy periods. During such imprisonment he would be subject to torture.

    ·He did not previously raise this because he did not tell his agent of the requirement to complete military service and he did not understand it as being relevant to his application for protection.

15. [In] March 2016, the agent for the applicant provided the Tribunal by email with further country information regarding military service in Vietnam from an unidentified source.

16. At the hearing on 4 April 2016, the Tribunal discussed with the applicant the information he had previously submitted to the Department and the Tribunal, as well as relevant country information. Where relevant the evidence provided by the applicant has been set out below.

17. Following the hearing the agent for the applicant submitted a further statutory declaration of the applicant sworn [date] April 2016.

    ASESSMENT OF CLAIMS AND EVIDENCE

18. The applicant travelled to Australia on a passport issued by the Socialist Republic of Vietnam and claims to be a national of that country. A copy relevant extracts of the passport of the applicant are contained in the Department file. The Tribunal therefore accepts, in the absence of evidence to the contrary, that the applicant is a national of Vietnam and have assessed his claims against Vietnam as his country of nationality.

19. The applicant has declared in his Protection visa application that he does not hold citizenship of any other country and also declares that he does not have a right to reside in any other country. There is nothing before the Tribunal to suggest that the applicant is precluded from protection by the operation of s.36(3) of the Act.

20. During the course of the hearing it became evident that there were serious concerns about the applicant’s credibility and he conceded that he had not told truth about significant aspects of his claims. At the beginning of the hearing, the Tribunal asked the applicant whether the information he had previously provided to the Department as part of his Protection visa application was true and correct. The applicant told the Tribunal that he did not realise when his application was lodged with the Department that it was an application for a Protection visa for religious reasons. He said he was just looking for a way to stay in Australia. He paid the money to his agent and he was told they would take care of it. He realised that his Protection visa application in the beginning did not fulfil the necessary criteria. When asked what he thought were the deficiencies in his claim he responded that he had only converted to Catholicism in Australia and he did not think that he would have any problems if he went back to Vietnam due to his conversion. When asked the reason for the delay in lodging his application, the applicant stated this was because he did not have the money to instruct and agent. The applicant conceded that he had misled the Department with his initial claims, that he had exaggerated his circumstances and apologised to the Tribunal. Due to this admission and for the further reasons as set out below, the Tribunal has concluded that the decision under review should be affirmed

    Claims in relation to Catholicism in Vietnam

21. The applicant conceded to the Tribunal that he had never attended a Catholic church in Vietnam and in his claims to have been baptised there were manufactured. He told the Tribunal that the first-time attended a Catholic Church was in March 2014, after he lodged his application for Protection with the Department. The reason he attended was because he was told that he had to attend Catholic Mass to get evidence and a baptism certificate to support his application. The applicant acknowledged he was wrong in exaggerating this but claimed he was under pressure from his agent to provide as much information as he could to support his application. When asked about his previous detention by authorities for engaging in preaching activities he again apologised and told the Tribunal that he was never arrested. He also conceded that the documents he provided to the Department were not genuine. He accepted that it was a mistake to provide this material but claimed he was pressured by his agent to get as much information to make his application sustainable. He conceded that he also provided incorrect information to the delegate at his interview.

22. In light of these concessions by the applicant, the Tribunal rejects in their entirety the claims of the applicant in relation to his past experience in Vietnam and finds that he applicant did not follow the Catholic religion, he did not engage in any preaching, was never arrested and did not experience any harm in Vietnam due to his religion or otherwise prior to his departure.

    Claims of Catholicism in Australia

23. The applicant claimed that he was now a Catholic as after he had been attending catechism classes in anticipation being baptised for the purposes of his Protection visa application, he was inspired and continued to attend for himself. He told the Tribunal that he continues to attend the [name] Catholic Church at [suburb]. He also told the Tribunal that he did not imagine that he would suffer any harm due to his conversion if he returned to Vietnam. The applicant claimed that he would continue to attend Catholic Church if he returned to Vietnam. It was put to the applicant at the hearing that he would be able to attend a registered Church and go to Mass in Vietnam and the applicant agreed generally with this proposition. 

24. The Tribunal asked the applicant how he practised his religion in Australia. He claimed to attend Mass, less frequently now as he sometimes worked on weekends. The last time he attended Mass was 3 weeks before the Tribunal hearing. He also might help out at the church and gave the example that because he had experience in tiling he has offered his services to do some maintenance at the church. He also claimed that he would help out at Mass, and used to set the Bibles out in preparation for Mass and at the conclusion of the service he would do such tasks are switching the lights off and closing the church door. The applicant was asked about photographs he submitted of church activity. He claimed these were photographs supporting his conviction of becoming a Catholic. When asked about the date of these photographs he claimed they were taken just before and after his baptism in August 2014. One photograph depicts the applicant walking outside with a crowd of other people and the applicant was asked about the purpose and meaning of this event. The applicant could not remember when the incident occurred he claimed it was just a procession for Christ and an outdoor activity. He was not aware of the significance of the event. The applicant did not claim to engage in any other religious activity in Australia.

25. The Tribunal considered disregarding the applicant’s claimed conversion to Catholicism pursuant to section 91R(3) of the Act. However, given the applicant’s admission that he would not suffer any harm due to his conversion to Catholicism, the Tribunal has given the applicant the benefit of the doubt and accepts that his baptism as a Catholic and that his observance of the Catholic faith is genuine. Independent Country information indicates that Catholicism is one of 11 religions officially recognised by the Vietnamese Government.[1] Catholicism is the second largest religion in Vietnam (after Buddhism) with seven per cent of the population belonging to the Roman Catholic Church.[2] There were over six million Catholics in Vietnam across 26 dioceses, and over 10,000 places of worship. The US Departments of State 2013 International Religious Freedom Report states that around 7 per cent of the population of Vietnam is Catholic, and Catholicism is growing. It is acknowledged that country information also indicates a level of restriction on religious freedom in Vietnam. However the Tribunal considers that the circumstances and situations in which such restrictions and any consequential harm occur are removed from the applicant’s own personal religious practice. The Tribunal has also had regard to the most recent DFAT assessment for Vietnam that that Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference. [3] The Tribunal accepts that the applicant may continue to practice his Catholicism if he returns to Vietnam and finds that he could continue to practice and hold his Catholic faith in the way he currently claims to do so without interference or threat of harm.

    [1] US Department of State 2011, July-December International Religious Freedom Report, 13 September, p.4 - Accessed 15 September 2011; Australian Institute of International Affairs Victoria 2011, Report of the AIIAV Study Tour to Vietnam: 7-21  April 2011, p. 4 - Accessed 27 February 2012

    [2] US Department of State 2011, July-December International Religious Freedom Report, 13 September, p.2

    [3] Department of Foreign Affairs Trade Country Information Report – Vietnam, published on 31 August 2015 at 3.24

1. The Tribunal finds that the chance of the applicant suffering serious harm as a practising Catholic because of his religion in Vietnam is remote.

   Claims in relation to military service

2. When asked what would  happened to him if he went back to Vietnam, the applicant initially responded that he just wanted to stay in Australia, and stated “I love this country and I just to stay here.” When asked what the fear he had of returning to Vietnam he claimed he would be forced to fulfil his military service obligation. The applicant agreed that mandatory military service applied to all Vietnamese males between the age of 18 and 30. However, he claimed that as a Catholic he objected to serving in the army and he believed in peace. If he refused to serve he claimed he would be put in prison. It was put to the applicant that Catholics all around the world serve various armies and undertake military service and he was asked to identify the particular tenets of his Catholic faith that prevented him from undertaking this obligation. He claimed that it was just because he was a Catholic, and he would have to handle a rifle and if there was a war he may have to kill someone and that this was against the Bible teaching. It was put to the applicant that Vietnam was not currently at war, or anticipating war, with any country so this possibility was remote. The applicant then claimed that the government may use the army to stop demonstrations and then he may have to use a rifle against his own people.

3. It was put to the applicant that, as he had already admitted to manufacturing earlier claims to support his Protection visa application, it was open to to the Tribunal to find this claim also lacked credibility. The applicant again apologised and admitted he made a mistake with the information he provided to the Department, yet he claimed that he had a genuine conscientious objection and had been completely honest and open with the Tribunal and that this was why he had admitted his previous errors. The Tribunal disputed this contention and the applicant was asked why, if it was his intention to be honest with the Tribunal, he had again submitted documents in relation to his baptism in Vietnam which he now acknowledged to be false. The applicant was unable to explain this, he denied knowledge of submissions sent to the Tribunal on his behalf, and claimed that his agent had submitted documents without approval. Information was also put to the applicant pursuant to section 424A of the Act regarding his attempts at study in Australia. The Department records that his educational institution had advised he was away from his course from [date] February 2010, [in] April 2010 he came back asking to start English class again and he then left the school from [date] May 2010 without notification. The school advised the Department that it tried to contact the applicant but there was no reply. This directly contradicted the information he had earlier provided the Tribunal about his studies, particularly that he had attended regularly for 6 months and enrolled in further courses. The applicant then conceded that the Department records were correct. It is clear that the applicant was also prepared to provide false information to the Tribunal.

4. Not only did the applicant delay making a claim for Protection, having arrived in Australia in 2009 and not lodging his claim until 2014, he also delayed making any claims to fear harm due to his obligation to fulfil military service.  While the Tribunal accepts that male citizens may between the age group of 18 to 27 years may be called up for military service[4], further undermining the applicant’s credibility is the fact that the applicants position in relation to this obligation has also changed. When the applicant first raised his obligation to undertake military service upon return to Vietnam at his interview with the delegate in December 2014 , the delegate records in his decision that the applicant not to raise any conscientious objection to this obligation. The Tribunal attempted to question the applicant as to his knowledge of Christianity, and his attention was drawn to matters he discussed with the delegate such as the 10 Commandments. The applicant claimed he could not remember specific things anymore. When he was asked about his faith in what it meant to him the applicant said becoming a Catholic had helped him, and that attending Mass made him feel good. He had learned to love others and be more altruistic. Although he may have been baptised, the Tribunal is of the view that the applicant has only a rudimentary understanding of the Catholic faith and the Tribunal is not satisfied that his objection is based on a deeply held religious conviction.

   [4] Ministry of Justice (Socialist Republic of Vietnam) 2016, Ten laws take effect as from 1 January 2016, 8 January

5. Further undermining the applicant’s credibility, in his statutory declaration submitted to the Tribunal [in] April 2016 the applicant resiled from his earlier evidence at the hearing and stated that he had not been influenced are encouraged in any way to make the claims in his Protection visa application by his current or previous migration agent and that his advisers were not aware that it was not telling the truth. In contrast to his evidence at the hearing, he now stated that he did not wish to complete military service on the basis of his objection to the treatment Christians in Vietnam. This contradicts his earlier evidence that he did not think he would face any harm due to his conversion to Catholicism and that he would be able to attend a registered Church openly.

6. Having considered the totality of claims and evidence it is clear that the applicant has given false information to both the Department and the Tribunal over the course of this application. The Tribunal notes that the conscription laws in Vietnam are generally applicable, that they serve a legitimate national objective. The Tribunal is of the view that the applicant has kept manufacturing claims throughout the process of this application in attempts to maintain his prospects of obtaining a Protection visa. The Tribunal is not satisfied that he genuinely subscribes to the position of a “conscientious objector” that he has articulated for reasons of his Christianity or the objection to the treatment of Christians in Vietnam. The Tribunal is of the view that he is prepared to say anything to obtain a Protection visa without regard to the truth, that he is invented or borrowed this argument disingenuously simply in order to contrive a further claim for Protection. For all of the above reasons, in light of its finding that he was an unreliable witness who had knowingly given and maintained a false set of claims, on the evidence before it, the Tribunal has no confidence in accepting, and does not accept, any of the applicant’s evidence about his objections to military service or that he would refuse to fulfil his obligations.

7. In view of the above findings, and in light of the Tribunal’s finding that the applicant is not a credible person, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons put forward by him.

8. Having considered all of the applicants claims individually and cumulatively, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm on the grounds of his actual or imputed political opinion, his actual or imputed religion, or his membership of a particular social group or any other Convention reason if he returns to Vietnams now or in the reasonably foreseeable future.

9. The Tribunal has also considered whether the applicant would be entitled to protection under the complementary protection provisions of the Act. In view of the above findings the Tribunal is not satisfied on the available information that the applicant faces a real risk of significant harm as a consequence of his actual or imputed religion, his actual or imputed political opinion or any obligation to perform military service. As set out above, the Tribunal does not accept as credible his claims that he would refuse to perform any military service obligations.

10. Accordingly, having considered all of the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on the applicant, or the applicant will be subject to cruel or inhuman treatment or punishment, or the applicant will be subject to degrading treatment or punishment.

11. The Tribunal is not satisfied on the information and materials before it that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there would be a real risk that he would suffer significant harm.

    Conclusion

12. 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).

13. 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).

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.

    Penelope Hunter
    Member