1500941 (Refugee)

1500941 (Refugee) [2018] AATA 286 (15 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500941
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Nicola Findson
DATE:15 January 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 15 January 2018 at 2:10pm
CATCHWORDS
Refugee – Protection visa – Vietnam – Temporary Protection (Class XD) visa application – Imputed anti-government political opinion – Opposed corruption – Dissident to the local authorities – Arrested and detained – Boat arrival– Debt – Fear of harm as a returned failed asylum seeker – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5(1), 36, 36(2)(a)-(b), 36(2A)-(2B), 36(3) , 65, 45AA, 91R(1)(a)-(c), 91R(2), 499
Migration Regulations 1994, r 2.08F Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA vRajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong
Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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

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).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on [date] June 2014 and the delegate refused to grant the visa on [date] January 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.
The applicant was represented in relation to the review by his registered migration agent. A submission in support of the applicant’s claims, which included an accompanying statutory declaration of the applicant, was received by the Tribunal prior to the hearing.
The applicant’s protection claims submitted to the delegate
The applicant provided a statutory declaration sworn [in] June 2014 in support of his protection visa application. In it he declares, amongst other things:
·He was born in [year] in Nghe An province, Vietnam. He lived with his [family members], who all still live in his home village. He is married with [children]. His family farmed on a small plot of government land. His family cultivated the land, but it did not generate enough income for them to live and pay tax. The applicant worked another [job].
·He claims he left Vietnam because he feared harm from the Government authorities about his political opinions. He claims he took part in a meeting on [date] October 2012, to raise objections to the way the Local Government was trying to impose a tax on them illegally. He claims the local government wanted to raise funds for its own purposes and his whole village stood up and made their objections known. He claims everyone in the village felt the injustice and unfairness of the proposed tax.
·He claims the Local Authorities knew that there were objections to the tax and they arranged a meeting so that people from the village could attend and voice their opinions. He claims they were invited by the local authority to attend the meeting to voice their complaints.
·He claims after the meeting things were okay, but on [date] November 2012, he submitted a complaint to the local government authority about a crooked officer. His complaint set out that the officer was taking money from the people and putting it in his own pocket instead of using it for the public.
·He claims on [date] December 2012, the local police summonsed him to the police station for questioning. He claims he was interrogated because the police suspected him of being one of the main people who organised the villagers to protest against the local government in October 2012. He claims that although he denied being involved in any incitement at the October meeting, or that anyone had incited the villagers to voice their objections, he was badly beaten and detained for two days. He claims during this time the officers tried to force him to admit that he had organised the October demonstration and to disclose any others who were involved in organising the demonstration.
·He claims that after his release he was followed and monitored by police.
·He claims that about three months after he left Vietnam, his family was interrogated by local security police. He claims his wife was asked why and how he left and who had organised the trip for him. He claims his wife told the police that he had escaped Vietnam and gone to Australia and was seeking protection as a refugee.
·As to what he fears will happen to him, by whom and why, if he returns to Vietnam, the applicant declares he fears harm from the police, security police and local Government authorities. He declares that the police and authorities crack down on anyone they feel is organising public demonstrations and that public opinion that is expressed is taken to be against the Government and a serious offence. He claims he is extremely concerned that the security police have accurate information about his whereabouts and how and why he left Vietnam.
·The applicant claims he was attacked by the local authorities indirectly, by not being able to get a job. He claims that to work in his local area he required permission to work. He claims nobody would employ him because they were afraid the police would punish and harm them.
·The applicant also claims that in January 2014 there was a privacy breach by the Australian government when it disclosed his personal details on the Department’s website. He claims he is afraid that the release of this information will become known to the Vietnamese authorities.
·He claims the authorities will harm him because he left illegally in 2013, and the difficulties he had with his local authorities will come to their attention.
Delegate’s decision
In a decision record signed by the delegate on [date] January 2015, the delegate sets out his response for refusing to grant the applicant a protection visa. The delegate found, amongst other things, that the applicant was not a credible witness and did not accept his evidence generally. The delegate rejected, amongst other things, the applicant’s claim that he was being targeted by the local authorities of his village. The delegate also rejected the applicant’s claim that he would be mistreated for reasons of returning as a failed asylum seeker or as a consequence of the release of some of his personal information by the Department.
Application for Review
On 21 January 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. The application for review was submitted, coupled with a copy of the delegate’s decision record, which the Tribunal accepts as being submitted for the purposes of the application for review.
On 17 February 2016, the Tribunal received a detailed written submission from the applicant’s representative together with a further statutory declaration, sworn on [date] June 2016, from the applicant. The Tribunal has considered these submissions and evidence and summarises them as follows.
Further written statement by the applicant
A nine-page statement by the applicant sets out that the applicant is currently working in Australia and sending money back to his family remaining in Vietnam. He claims his family is being troubled by the officials, specifically “they are being restricted a lot”, due to his uprising against the government and need his help. He states that he maintains telephone contact with his family, but keeps contact short and simple because he knows that the authorities are “monitoring my family” and does not want to make life more difficult for them. He also states he sends money to his family though private channels and not through banks, to ensure the funds reach his family.
The applicant’s statement refers to his interview held after arriving in Australia. The applicant claims that he gave a different name and birthdate when he arrived in Australia because he feared being prosecuted by officials. He states he had been told by people on the same boat as him that if he provided the correct details, this would go back to the officials in Vietnam and his family might be in danger. He states his fear of being exposed came true when he gave his real details – 3 or 4 weeks after he arrived – the authorities in Vietnam looked for his family and told them he was being held in a detention centre. He states that the authorities in Vietnam found out about everything and should he be deported they would be waiting for him to return to cause problems for him.
He states that he found out that the names of the Vietnamese refugees that had fled the communist control had been leaked back to the Vietnamese government. He states he is reluctant to believe the Department that his details were never revealed to the Vietnamese authorities because news of his detainment in the refugee camp made it to Vietnam. Also, he states that at the start of 2014, in the detention centre, he and other detainees saw Vietnamese people in the centre who they believed were authorities from Vietnam.
The applicant set out in his statement that he took a stand against the officials taking “ridiculous amounts of tax from villagers”. He said the local government were taking three times as much as the standard tax rates and keeping the surplus funds for their own benefit. He sets out that on tax collection day, [date] October 2012, he refused to pay the additional tax that was being charged by the officials. He said he had the support of the whole village. He said the villagers supported him and others who were taking a stand by encouraging them but they never got involved further due to fear that they would get in trouble. He states that after the end of their protests, they were told to pay or threatened with having other things taken from them.
The applicant claims that on [date] November 2012, he made an application directly to the authorities to protest against the unfair taxes being requested.
On [date] December 2012, the applicant claims he was taken to the police station in the centre of the town and interrogated. When he told the police that the local government was taking extra tax for their own use, he was beaten and harassed. He states he was interrogated for names of others involved with the protest. He said he was detained for two days and then let go, not because they were done with him, but to serve as a warning to others. He said he was warned that if he kept acting against the government there would be stricter methods of punishment and he would be locked up in prison.
He sets out in his statement that although he was released, he was monitored to ensure he did not plan any protest or uprising against the government. He said the authorities would go and interrogate everyone that he spoke to or met up with to see if he was planning any suspicious activities. He stated he was the primary target but his family also received the backlash from the officials. He set out that the whole village faced difficulties, for example, children faced difficulty getting simple paperwork from the government to submit as their school application.
The applicant stated that he felt that he was going to end up being prosecuted by the officials because he had stood up for what was right, so he decided to leave to drop some of the pressure that his family was being subjected to. He said he fled to help himself and his family.
The applicant stated that he does not know what happened to the other villagers who stood up against the government. He said they stayed with their families and endured the issues because they did not have any other escape route. He said “we don’t keep in contact and my family stays away from mingling with the other people’s family out of fear of further trouble”.
The applicant referred to how he came to Australia and why he waited five months to escape Vietnam after his arrest. He set out that there was a short delay in his escape because it is not easy to just leave the country. He said he endured the monitoring and harsh treatment for a while and when if did not get better, he thought about escape. He said his coming to Australia was made possible by a man named “[Mr A]”, whom he met by chance at a café in Vinh City where he was [visiting]. He states [in] May 2013, he paid “[Mr A]” US$[amount]. He states “[Mr A]” organised his visit to [Country 1] and paid bribes to get him out of the country without a hassle. He states from [Country 1] , he travelled to [Country 2] to board a boat with other refugees to come Australia. He states that about a week after he arrived in Australia, he was interviewed by the Department, and when he was given the opportunity to provide the right information and a promise that his information would be kept confidential, he gave his real name and date of birth.
He states his delays in making his claims were for the same reason he had given a fake name and date of birth to the Department. He feared that this information would get back to the Vietnamese government and he would end up being deported and prosecuted. He states his trust for government officials is very low since there is so much corruption in his home country. He states he was extremely nervous when he was interviewed for the first time and forgot to say most things. He also states he thinks the interrogator did not get his whole story down.
The applicant states that he has a profile in Vietnam as a person of interest because he caused trouble. He states that for a small village like his, someone who stands up to the local government would be considered a big issue. He states that since he has sought refuge in Australia, the authorities would be even more wary of him because of the claims he has made against the Vietnamese government. He states that there is a risk to his life if he returns to Vietnam, because he would be returning as a failed refugee.
In response to the delegate’s query as to how the applicant was able to obtain his household registration documents so easily after his arrival in Australia, he states that these were already in the possession of his wife and only needed to be certified before being sent to him in Australia. He states that his wife paid a bribe to have the certification done. He states that the household registration was issued in 1994 and certification was not a major thing, in contrast to getting a new one issued.
The applicant sets out how he will be harmed if he returns to Vietnam. He states that if he gets deported, the first thing that will happen is that he will be taken to the local police station and interrogated and eventually released. He states that after one or two years when the Australian officials have turned their backs, he will be captured, detained, tortured and punished for standing up for his rights and badmouthing the Vietnamese government to Australian authorities. He states that censorship is a major thing in communist countries and although there are reports that returned refugees will be alright and only punished with a fine, it is the harsher details that are never revealed as the people making these reports never get to see what happens behind closed doors. He states the penalties for acting out against the government are very strict in Vietnam.
As to relocating elsewhere in Vietnam, the applicant states that it does not matter where he goes, the officials will still know where he is and his issues will follow him. He states he will be traced and monitored anywhere he goes.
Pre hearing submission from applicant’s representative
The Tribunal summarises what it considers to be the most significant parts of the pre-hearing submission from the applicant’s representative in the following paragraphs.
The submission states the applicant is a person to whom Australia owes protection for reasons of his political views and stand against the Government in Vietnam and goes on to consider the findings of the delegate in respect of the applicant’s credibility.
In response to the delegate’s finding that the applicant did not reveal his true identity or raise his claims for protection at his entry interview, it is submitted that the applicant was reluctant to declare his real identity or raise his protection claims because he was fearful this information would negatively affect him and cause trouble for his family in Vietnam.
In response to the delegate’s concerns about the delay in the applicant’s departure from Vietnam after November 2012, it is submitted that the delay was the result of severe monitoring he faced during the initial period after being detained by the authorities and then the difficulty in finding an escape pathway.
The submission argues that the applicant’s departure from Vietnam was organised by a third party, who had experience and connections with airport personnel, and who had likely paid a bribe(s) to move the applicant easily out of Vietnam.
As to the issue of relocating within Vietnam, the submission sets out that the applicant had considered relocating to Binh Duong, but decided against it as it would have put a burden on his [eldest child] (who had temporary work residency rights in the area), particularly if his monitoring by the authorities continued in the new area. It was also argued that illegal residency would have caused the applicant great difficulty as a “citizen without household registration can face significant restrictions in terms of his/her access to basic living requirements such as food, shelter, employment and social services like medical care” (Dang, A.N, Tacoli, C, Hoang, T.x 2003, Migration in Vietnam: A review of information on current trends and patterns and their policy implications, see
Further submissions are also made in respect of the applicant fearing harm for reasons of being considered a political dissident and a failed asylum seeker.
Tribunal Hearing
The applicant appeared before the Tribunal on 24 February 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by telephone.
At his hearing, the applicant confirmed his basic details, including his date of birth and his citizenship. He explained that he finished year [grade] at school, but has no formal qualifications and his work has been as a farmer. He said he and his family worked on land assigned by the local authorities. He said that his farming work generated enough to cover his expenses. He said that with the exception of his eldest [child], who was living in Binh Duong province, the rest of his close family remained in his home village.

He claims that before coming to Australia he had never travelled outside Vietnam, other than to [Country 3] in 2011. He said he stayed in [Country 3], with an [relative], for [a short period of time].
The applicant confirmed he left Vietnam by plane and travelled to [Country 2] then boarded a boat which eventually brought him into Australian territory. He claims he left Vietnam with the assistance of a people smuggler whom he paid US$[amount].
He said he obtained a passport, possibly in 2010, in order to travel to [Country 3]. He said he no longer has the passport because it was taken by a people smuggler in [Country 2], on route to Australia.
He said he maintains frequent contact with his family who remain in Vietnam by telephone, and last spoke with them just prior to the hearing. He is currently employed to do [a certain] work. He has previously worked in [another workplace]. He confirmed he sends money to his family when he has work.
The Tribunal asked the applicant why he fears returning to Vietnam. He said that he had been arrested for protesting against the local government and writing a letter to denounce their corruption.
He said that on [date] October 2012, he was involved in a protest against the amount of tax being imposed on the farmers by the local authorities. He said the head of the Hamlet [had] organised a meeting on behalf of the local authorities to tell the villagers that the farmers would be required to pay 30% of the value of the products they made in tax, rather than the 10% set by the central government. He said a lot of village people attended the meeting to protest against the higher tax. He said the meeting, which went for about two hours, was held in the hamlet hall and was attended by 60 to 70 people. The applicant claims he, like most of the other attendees, spoke up against raising the tax because it was unfair.
He said after the meeting, the local authority still forced the farmers to pay the higher tax. He said he paid the higher tax, but he also wrote a letter on [date] November to the government office, which letter set out his disagreement with the decision of the local authorities to raise the tax. He said he accused individuals in the local government of being corrupt and keeping 20% of the taxes.
The applicant said that a few days after he sent the letter, on [date] December 2012, three police officers [came] and arrested him for denouncing and slandering the government. He said that he was questioned further at the [Police] Station about if he was involved in any group and if so what the group was. He said he was detained for two days. He said he was tortured and interrogated and asked whether somebody else had asked him to write letter. He said he told the officers that he had written the letter on his own accord. The applicant said that there were many people raising their opposition to the government, but he thinks the police may have been concerned that the applicant was the one who organised the protest. When the Tribunal queried why the police would have been concerned with arresting and interrogating him given that it was the local authorities, via the Hamlet Head, rather than him who had organised the meeting, the applicant replied that that was true but he was the first one who wrote the letter.
The applicant claimed he was slapped [and] hit [while] he was in custody. When asked if he had sought medical attention in relation to any injuries he sustained, the applicant replied that it had not been necessary for him to do so.
When the Tribunal asked if he thought there might be problems for him if he wrote the letter, the applicant replied that he never thought he would be arrested.
The applicant told the Tribunal that he had never been a member of any political party in Vietnam.
The applicant told the Tribunal that he was sure there were other people who wrote letters to the local government office, but could not say who. He claimed that he was the first person who was arrested, so he is unsure of who else might have written letters and any subsequent adverse treatment they might have received. He said the tax rate remains at 30%.
When the Tribunal asked whether the applicant was aware of any other people in his village being arrested, he replied that he was not sure. He said after he left Vietnam, it was a long time before he could contact his family. When he talked to them again, he did not ask them about that. He also said he told his family that it would be best to look after themselves and not concern themselves with anyone else about this matter. When the Tribunal put to the applicant that he had fled Vietnam because of this issue and thought he would have been interested in whether others had got into trouble for the same reason, the applicant replied that his family were under surveillance after he left Vietnam, so they were not confident to go out and contact others within the community.
The Tribunal indicated to the applicant that it was difficult to understand why he was targeted by the local authorities when, on his evidence there were many people in the village opposed to the higher tax who had voiced their complaints at the meeting. By way of response, the applicant replied that he was arrested to be made an example of and to warn others not to send in letters of complaint.
When asked about the monitoring he was subjected to after his release, the applicant told the Tribunal that the local police were trying to find if there was any connection between him and others in the locality. He said the authorities watched his family closely, so his family was not confident to talk to others about anything. When the Tribunal asked the applicant how he knew he was being closely monitored, he said that when he was in detention, he spoke to his family by telephone and they told him that occasionally the police came to ask about him. When probed for further information by the Tribunal, the applicant said that after he had left Vietnam they came very month. He said “someone was hanging around and watching my family”. He said it was a police officer in plain clothes. He said “they pretended to be civilian and asked my family general questions like ‘How is [the applicant]?’ and ‘Where is he now?”.
The Tribunal asked the applicant if his family had received any threats. The applicant said that the most difficult thing for his family has been that every time they apply for something, it is nearly impossible for those applications to be approved. He said his [daughter], when she finished year [grade], was not able to enrol in year [grade] because the authorities harassed his family and caused difficulties. The Tribunal put it to the applicant that in the statement he had provided the Tribunal prior to his hearing, he had indicated that the officials caused problems for the entire village. The applicant responded that all the people in his village had difficulties with the paperwork for their children, but his family suffered the most. The Tribunal asked the applicant to tell it about other problems his family had suffered. The applicant replied that the main problem is the tax rate remains at 30%. He said that when he was still in Vietnam he had to pay the high tax, but could still survive because in addition to his farming work he got earnings from buying and selling things. However, he said other villagers faced a lot of hardship because of this high tax rate. The Tribunal asked the applicant again about the difficulties faced specifically by his family since his problems with the local authorities. The applicant responded that in Vietnam, if they want to travel to other places a permit is needed from the government. He said that his wife had been doing some business– buying and reselling – and needed a travelling permit. But, because of the incident, she had trouble obtaining it from local authorities and so had to stop her business.
When asked if there were any other problems he wanted the Tribunal to be made aware of, the applicant said that he wanted to say something about his holiday to [Country 3]. He said he went there in 2011, to holiday and to work. He said his [relative] had a business in [Country 3]. He said that he was unable to find a job there, so after some time he returned to his home area. When the Tribunal asked him why he would want to leave his life and loved ones to go and live in [Country 3] at that time, the applicant replied that he wanted to get more earnings to support his family.
The Tribunal asked the applicant again about the monitoring he was subjected to when he was released from police custody. He said that sometimes uniformed police officers came to his home and asked him: “What are you doing? How are you?”; and other times, men in civilian clothes - who he knew straight away were undercover police officers - approached him to ask him similar questions. The applicant said that on top of the monitoring, he was unable to obtain a permit to go to South Vietnam to find a job. He said that this meant he had to stay in his home area and keep on with a small [business] he had set up of buying and selling [items].
The Tribunal asked the applicant about how he finally arranged to leave Vietnam. The applicant said he met a man named “[Mr A]” while he was in Vinh City for business. He said he had travelled to Vinh City, which is about [distance] kms from his home area, to source [items] to resell. He said he was having a coffee in a cafeteria when he struck up a conversation with “[Mr A]” and told him about his situation. When the Tribunal asked the applicant why he decided to discuss leaving Vietnam with this man he had just met, he said that he told him about his situation and then explained to him that because he had become a dissident to the local authorities he was being monitored by them. He said he told “[Mr A]” that he had problems after his protest; he did not want to stay in his village because it was hard for him; and he wanted to go to South Vietnam to find some way to leave the country. He said “[Mr A]” listened to him and told him he would help him leave Vietnam. When the Tribunal asked the applicant when he had met [Mr A], the applicant replied that he was unsure, but it could have been around [date] April.
The Tribunal discussed with the applicant the delegate’s findings, as set out in the decision record, when the applicant indicated he did not understand why his visa had been refused. It explained to the applicant that the delegate had taken into account the comments and explanations put forward by both him, during his interview, and his representative in subsequent submissions, but was not persuaded that he was being truthful with his claims. It explained that the delegate found his claim, that he was being targeted by the local authorities of is village, was not credible.
The Tribunal referred to the delegate’s findings in respect of the applicant’s failure to leave his home area. It explained that the delegate was of the view that the applicant’s situation was not as serious as he was trying to portray. It explained that the delegate considered that the issue he had with the authorities was local in nature and related to local authority corruption, which would have meant that he could have fled to another part of Vietnam, especially since he had a [child]in another province. The applicant indicated to the Tribunal that if it wanted to make sure that he was telling the truth, all it needed to do was carry out an investigation at his locality. He said it is not easy for someone in Vietnam to move from one locality to another, because when you move, you need a permit from your old locality and if you do not have that permit you will encounter difficulties with the local police in the new place. The Tribunal pointed out to the applicant that people who fear for their lives generally do whatever it takes to leave their situation, and it may have similar concerns about him not leaving his village sooner than he did. The applicant replied that his [eldest child]was studying and only had a temporary permit to stay there. If he had gone to stay with her, without a permit from his home village, the local police would have arrested him and he would have been in trouble with them.
The Tribunal referred the applicant to the delegate’s finding that he had departed Vietnam using his own genuine passport and that as a result of this considered the applicant was not a person of interest to the Vietnamese authorities. The applicant responded by saying that he was not a wanted criminal and he had a passport. When he boarded the plane to leave Vietnam, he did not have any problems at all.
The Tribunal referred the applicant to the delegate’s finding that at the entry interview the applicant did not mention any of his current claims, but rather referred to coming to Australia for economic reasons. The applicant said he was forced to give false information because he was worried for himself as well as his family in Vietnam. He said he did not want the Vietnamese government knowing he had come to another country and had said something bad about the situation in his home country. He said he did not want either himself or his family to be in trouble if he was to return to Vietnam. He said he did not want to give a false identity, but after a few weeks came to realise that he needed to tell the Australian government everything about his true situation. The Tribunal expressed its concern that he did not appear to have told the truth at the entry interview, and that this raised serious questions as to the credibility of his evidence.
The Tribunal discussed with the applicant that he had gone to [Country 3] to seek work in 2011 and had also applied to go to the South of Vietnam to work prior to coming Australia, and that this might lead it to think he may have come to Australia for economic reasons as he had indicated to the Department during his entry interview. The applicant responded that he had gone to [Country 3] before he encountered problems in his home village and he did not go to the South because he was unable to obtain a permit to temporarily leave his village. The Tribunal indicated that the fact remained he had sought work both within and outside of Vietnam since 2011. The applicant replied that after the incident in his home village he had tried to go elsewhere to try to work, but he could not because he did not have the necessary permit. He said he did not come to Australia as an economic migrant. He said if he had come as an economic migrant he would not have remained in immigration detention for the time he did, but returned to Vietnam to continue earning an income. He said he owed money in Vietnam for his travel to Australia. He said he needed to work in Australia to pay off that debt. However, he also has reasons for not returning to Vietnam, and that is why he remains in Australia.
The Tribunal discussed with the applicant his claim that if he was to return to his home area in Vietnam he would be unable to get work and support himself because of what has happened. The applicant said that this is true. He said that people would be too scared to give him work and he could not get the necessary permissions to work. He said if he wanted to do work with a big company he would be unable to because of his protest against the authorities in his locality.
The Tribunal invited the applicant to make comment on independent country information setting out that activists are frequently prevented from travelling internationally. The Tribunal put it to the applicant that if he was wanted by the Vietnamese authorities it would be unlikely that he would have been permitted to depart his home country. The fact that the applicant was able to leave Vietnam on his own genuine passport, indicates that the applicant does not have a political profile or is a dissident. The applicant agreed that dissidents with high profiles are always closely watched and under surveillance. He said he only protested local government which was low ranking in Vietnam, so he did not have the problems that the prominent activists face.
The applicant went on to tell the Tribunal that before he left Vietnam, he only had problems with the local government. But if he was to return to Vietnam now, he will have problems with the central government because officials will know he fled the country and ended up applying for protection in Australia. The Tribunal discussed with the applicant country information indicating that the government of Vietnam considers that its citizens generally seek asylum abroad for economic reasons and does not treat failed asylum seekers differently to other returnees. Further, there is no evidence to indicate that being in immigration detention prior to returning to Vietnam, in itself, will result in harassment, intimidation or persecution by the Vietnamese authorities. By way of response, the applicant said that if he returns to Vietnam he is sure he would immediately be fined by the authorities, but after that nobody could guess what would happen in his future.
With respect to the claim of fearing he will be harmed because he fears his details were released to the Vietnamese authorities as a result of a privacy data breach, the Tribunal referred the applicant to the delegate’s finding that the reasons for the applicant’s detention were not included in the data that was accessible as a result of the Department’s data breach. The applicant indicated that he believed the Vietnamese government had information about him because his parents had come to know he was being kept in immigration detention and he had not told them this. The Tribunal put it to the applicant that the information before it was that the personal information about people who were in immigration detention was accessible for a short period of time; did not include details about protection claims; and appears not to have been accessed or used by Vietnamese authorities. The applicant said that there were also Vietnamese officials that came to the detention centre. He said he was unsure of whether his parents had learned about his situation from the Vietnamese police or someone else who had returned to Vietnam.
With regard to the visit to the immigration detention centres by the Vietnamese officials (referred to as A18 officials), the Tribunal explained that advice provided by the Department indicated that the officials were in Australia to assist in identification issues related to some other people. The Tribunal suggested to the applicant that on the basis of the Departmental information, it appeared that if the applicant was not interviewed by the officials, then those officials would not have any knowledge of him. The applicant confirmed that he was not called to speak to the A18 officials at any stage.
At the conclusion of the hearing, the applicant’s representative clarified that the applicant did not travel to [Country 3] in 2011 with his [relative], as is previously recorded. Rather, the applicant’s [relative] resides in [Country 3] and this was a reason he went there to find work. It was also clarified that the applicant had been advised of the reasons for the delegate’s decision. A submission was also made that although the applicant’s claims were not raised at his entry interview with the Department, he has provided an explanation for this, and since provided the Department with his protection claims which, although elaborated upon, have remained consistent.
Before finalising this decision record, the Tribunal listened to the audio recording of the applicant’s hearing. On 21 November 2017, the Tribunal also wrote to the applicant’s representative inviting any updated information for consideration. The applicant’s representative responded on 5 December 2017 that the applicant did not have any further information or documentation to provide to the Tribunal.
Independent country information

In addition to the country information cited in the delegate’s decision record, and to country information cited in the applicant’s submissions, the Tribunal had regard to country information cited in Appendix A of this decision record.
Relevant law
The relevant applicable law in this case is summarised in Appendix B of this decision record.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies the criteria in s.36(2)(a), or in s.36(2)(aa) of the Act for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference and third country protection
The applicant arrived in Australia as an undocumented person and had no valid travel documents in his possession upon entry to Australia. He subsequently submitted copies of documents, including a Household Registration Card and birth certificate as evidence of his identity. Based on the documents and evidence provided by the applicant to the Department, and to the Tribunal, the Tribunal finds the applicant is a national of Vietnam and that Vietnam is the country of reference for purposes of his refugee protection claims, and the receiving country for purposes of his complementary protection claims.
There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in any other country than Vietnam. The applicant is therefore not prohibited from protection by operation of the third country protection provision in s.36(3) of the Act.
Credibility considerations
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA vRajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out. (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.)
The Tribunal carefully considered all of the evidence available to it in this case. It considered the applicant’s written application, his oral evidence at the hearing before the Tribunal, and considered the written submissions made by his representative. It considered the records of his interviews with the Department, the applicant’s documentary evidence submitted to the Department, and the material included in attachments to the submissions received by the Tribunal. While it accepts some of the applicant’s evidence, as discussed further below, it concludes that the applicant is not a reliable witness and that critical aspects of his evidence are exaggerated or fabricated for the purposes of his protection visa application. In particular, it does not accept his claim to have been arrested and detained for two days for the stance he took in relation to the imposition of an unfair tax by local authorities, or subject to monitoring thereafter until his departure from Vietnam. As put to the applicant at the hearing, the applicant made no reference to this at his entry interview, but simply indicated he came to Australia because his debt in Vietnam was “mountain high” and he wanted to improve his financial situation. The Tribunal considered the applicant’s explanation of why he failed to make mention of his core claim for departing Vietnam at this earlier interview, and as discussed in further detail below, rejects those explanations as lacking credibility.
Assessment of refugee protection claims
The applicant has claimed to fear of serious harm in Vietnam for protesting, in late 2012, against the imposition of increased taxes by the local authorities in his village. It is submitted that the grounds for his claimed persecution are his political opinion, as well as for reasons of membership of a particular social group of people who have fled Vietnam to seek asylum. He has also claimed to fear harm for reasons of being in immigration detention when there was a privacy data breach and that he believes the Vietnamese authorities may have accessed this information. Finally, he has claimed that the visit to Australian immigration detention centres by A18 officials places him at further risk of harm if he returns to Vietnam. The Tribunal considers each of these claims below.
Imputed anti-government political opinion
The Tribunal accepts that the applicant is a farmer in Vietnam as he claims. It is also prepared to accept his claim that he attended a meeting on [date] October 2012, organised by the Hamlet Head to inform local farmers of the imposition of a higher tax rate. It does not, however, accept his claims that he protested at that meeting against the higher tax. Nor does it accept that the applicant subsequently wrote a letter setting out his disagreement with the decision to raise the tax and accusing local government members of being corrupt, or that he was arrested and detained for two days for doing so. While it is plausible that the rate of taxation had been increased at the relevant time in 2012, the Tribunal is not satisfied that the applicant expressed his disapproval – either orally at the meeting or subsequently in writing - in relation to the tax increase. The Tribunal finds the applicant’s underlying claim is his protest and subsequent arrest and detention in relation to the imposition of a higher tax on farmers in his village. It is upon this that his claims of subsequent mistreatment, and claimed future mistreatment, rest.
However, and as also found by the delegate, and as put to the applicant at the Tribunal hearing, he failed to mention this underlying basis at his entry interview when asked why he left Vietnam. The Tribunal considered his explanations in this respect. When this issue was put to the applicant, including the evidence that he made no mention at his entry interview of protesting against the imposition of higher taxes, or being arrested and detained by local Vietnamese authorities for doing so, but rather referred to coming to Australia for economic reasons, he responded that he was fearful of the Vietnamese authorities learning that he had spoken out about what had happened and causing trouble for his family in Vietnam. A statutory declaration sworn by the applicant sets out that he did not refer to these issues in his entry interview because he had been told not to provide the correct information by others travelling on the same boat as him. He states he was also extremely nervous when he was interviewed for the first time and forgot to say most things. Further, he declares that he thought the interrogator did not get his whole story down. The applicant did acknowledge that his reference at the entry interview to wanting to improve his financial situation is also true - he said he needed to work in Australia to pay off his debt. The Tribunal rejects the proposition that the applicant would not have at least made some reference, even a minor one, at the entry interview, to being arrested, detained and subsequently mistreated for protesting against a higher tax, as he now claims, if these things had indeed occurred. The Tribunal does not accept his reasons as to why he did not mention these things until making his subsequent written statements. It does not accept his claim that he did not mention these core claims because he feared putting himself and his family in danger. Nor does it accept that the interviewer did not get his whole story down. The Tribunal accepts the applicant was nervous when he was first interviewed, however, it does not accept that this explains why he claimed the reason for coming to Australia was to find work, or economic grounds, but not that he had been arrested, detained and mistreated.
As the Tribunal rejects the applicant’s claim that he was arrested and detained by Vietnamese authorities because of his protests against an unfair tax, the Tribunal rejects that he was tortured while in detention; or that he was accused of inciting protests against the government for imposing higher taxes; or that he and his family have been monitored and mistreated by the local authorities; or that he was denied the opportunity to work and therefore support himself. Further, and based on the finding that it does not accept he has been previously arrested and detained as he claims, the Tribunal does not accept that there will be any heightened interest in the applicant upon his return to Vietnam on this basis.
Based on the Tribunal’s assessment of the applicant’s unreliability as a witness, and having regard to all the evidence, including evidence that he was not otherwise involved in political activism in Vietnam, the Tribunal finds he will not be viewed as a person of interest as a political activist upon his return to Vietnam.
The Tribunal considered the applicant’s evidence in respect of his claim that he departed Vietnam and travelled to [Country 2] by air and then onwards to Australia, with the assistance of a people smuggler. The applicant told the Tribunal at hearing that he was not a wanted criminal and used his own passport to leave Vietnam. The applicant’s statutory declaration lodged in support of his review application sets out that a bribe would have been paid by his smuggler to enable him to leave freely through [Country 3] airport. However, based on all of the evidence before it, and based on its findings that he was not arrested or detained, and that he is not a person of interest to the Vietnamese authorities, the Tribunal finds that the applicant would have been allowed to depart using his own passport and without any difficulty, because it is satisfied that he is not a person of interest to the Vietnamese authorities then, now, or in the reasonably foreseeable future.
The Tribunal considered the applicant’s claims as presented in his interview responses, his written statements, his oral evidence before the Tribunal, and his written submissions and documentary evidence. Based on all the evidence, the Tribunal finds it is not satisfied that taken individually, or cumulatively, his circumstances and claims in respect of his actual or implied political opinion are such that he faces a real chance of serious harm for reasons of his claimed involvement in protesting against higher taxes, or for reasons of his claimed actual or imputed political opinion.
Privacy data breach
The applicant claims that the chance of being seriously harmed if he returns to Vietnam is a real one because of, or in part because of, the availability of his details through the internet as a result of a data privacy breach by the Department. He claims the information was released to the Vietnamese authorities.
At the hearing, the Tribunal pointed out to the applicant the delegate’s finding that the reasons for the applicant’s detention were not included in the data that was accessible as a result of the Department’s data breach. The applicant’s response indicated a refusal to believe that all of the information he had provided was not accessed by the Vietnamese authorities. He said he believes the Vietnamese authorities “found out about everything” and because of the claims he has made against the Vietnamese government, there is a risk to his life if he returns there.
Having regard to the evidence before it, the Tribunal finds that the only details that were released or accessible at the relevant time were in relation to the identities of those in detention and no details as to whether those persons had lodged protection claims or the details of those claims were released. The Tribunal accepts that the applicant may disbelieve this and that he believes information about his protection claims would be accessible, however, his own belief is ultimately not the test in this particular matter.
In relation to the data breach, and having regard to the evidence before it, including the findings of the delegate, the Tribunal accepts that information may have been available regarding the applicant’s name, date of birth, nationality, gender, details about his detention (such as when he was detained, the reason and where) and if he had any other family members in detention. The Tribunal also finds that this information was not downloaded in Vietnam. These findings are based on information from The Guardian newspaper accessed at
The Tribunal finds that there is no evidence that the information in the data leak included the applicant’s address or any former of addresses, phone numbers or contact information, or any information about protection claims that he or any other person had made. The Tribunal also finds that the available information was accessible online for a short period of time before it was removed and the information was not a visible part of the report and was not easily accessible.
The Tribunal does not have evidence before it to enable it to find that information available as a result of the Departmental data breach included the applicant’s current Protection visa claims. The Tribunal does not accept that there is a real chance that the Vietnamese Government or any other Government may have used the applicant’s personal details and identification to access information about him such that he will be caused harm. The Tribunal does not accept that the applicant is of any interest, adverse or otherwise, to the Vietnamese government. The Tribunal does not accept that there is a real chance that the applicant will face serious harm because of the data breach and release of his personal information if he returns to Vietnam now or in the foreseeable future.
Visit to Australia immigration detention centres by the A18 police
The applicant claimed that he faces a real chance of serious harm if he returns to Vietnam because he was being held in immigration detention when officials from the Vietnamese A18 police attended immigration detention centres in Australia. He claims he has concerns that the security police have accurate information about his whereabouts and why he left Vietnam. At the hearing, the Tribunal explained the delegate’s finding that the A18 officials were in Australia to assist in identification issues related to other people. The applicant also confirmed that he was not interviewed by the A18 officials.
The Tribunal finds the applicant has not provided any credible evidence to indicate that the A18 officials who visited Australia at the relevant time were given, or obtained, any information about the applicant. The Tribunal has no credible evidence before it to contradict the advice given by the Department, and as put to the applicant, that the A18 officials were in Australia to assist with identity matters associated with other Vietnamese nationals but not related in any way to the applicant.
For the above reasons, and having regard to all of the evidence, the Tribunal rejects the applicant’s proposition that the chance of the applicant facing a real chance of serious harm for reasons of the A18 officials’ visit to Australia immigration detention centres.
Fear of harm as a returned failed asylum seeker.
The applicant claimed he fears harm for reasons of his return to Vietnam as a failed asylum seeker. At the hearing, the Tribunal referred the applicant to the country information, which was also included in the delegate’s decision record, and which does not point to a conclusion that failed asylum seekers returning to Vietnam from Australia are harmed on the basis of being a failed asylum seeker. At the hearing, the Tribunal put it to the applicant that country information indicates that the government of Vietnam is aware that people leave Vietnam for economic and employment reasons and that it would not necessarily be assumed that he left Vietnam because of any anti-government political opinion. The applicant responded that in his case the authorities know he has spoken out against the regime and would not view him to be an economic migrant.
Having regard to the country information which was put to the applicant, and which is also referred to in the delegate’s decision record, and having regard to the findings of the delegate and to the applicant’s oral evidence and written submissions, the Tribunal is satisfied that the applicant is not a person of any interest to the Vietnamese officials or authorities. It is also satisfied based on its findings, and the applicant’s own admission of not being involved in political activities, that upon return to Vietnam the applicant would not be viewed as a returning political activist, who the DFAT country information indicates are likely to attract the attention of authorities. The Tribunal does not accept the applicant was arrested and detained as he claims, and does not accept he will be viewed as a person with an adverse record. Despite the applicant’s claim that the authorities would not view him as an economic migrant, the Tribunal formed a different view based on such things as his statements made at the entry interview, that the motivation for his travel to Australia is indeed economic. Based on all of the country information before the Tribunal, it finds that this does not suggest that in the applicant’s particular circumstances he faces a real chance of serious harm, upon return to Vietnam, including in the process of being screened through immigration control at the airport, or subsequent to his entry to Vietnam, for reasons of returning as a failed asylum seeker from Australia.
For the above reasons, the Tribunal finds it is satisfied that there is not a real chance the applicant will face serious harm now or in the reasonably foreseeable future in Vietnam for returning there as a failed asylum seeker.
Having regard to all of the claims individually, and then considering them acting together cumulatively, the Tribunal finds there is not a real chance of the applicant facing ‘serious harm’ as that term is contemplated in s.91R of the Act, now or in the reasonably foreseeable future if he returns to Vietnam. The Tribunal therefore finds the applicant’s fear of serious harm for one of more of the Convention grounds is not well founded.
Assessment of complementary protection claims

As the Tribunal has found it is not satisfied that the applicant meets the criteria for protection under s.36(2)(a) of the Act, it has proceeded to consider whether he meets the criteria for complementary protection under s.36(2)(aa) of the Act. As indicated under the relevant law section of this decision, this requires that the Tribunal be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Vietnam in this case, there is a real risk that he will suffer significant harm.
The Tribunal considered the applicant’s claims that he fears he will be detained by police because he has already been previously arrested, detained and mistreated for reasons of his involvement in protesting against an unfair tax. For reasons set out in its consideration of the applicant’s refugee claims, the Tribunal rejects the applicant was arrested or detained or accused of organising any protest, and it therefore finds there is not a real risk that he would be targeted for significant harm now for the claimed reason of his past involvement in the tax protest, or because of his claim to have been arrested and detained as a result of his protest, if he is removed to Vietnam. Similarly, it does not find there is a real risk of significant harm for reasons of illegal departure from Vietnam, or for returning as a failed asylum seeker, or for reasons of the privacy data breach, or for reasons of the A18 police visit to immigration detention centres in Australia.
In the applicant’s pre-hearing submissions, it is stated, “Given the severe level of censorship that occurs in Vietnam, one would question the information provided to third parties, such as the UNHCR, and whether such information accurately reflects the current situation in Vietnam regarding failed asylum seekers”. The submission refers to reports, including by Human Rights Watch (2205) and United States Department of State (2004), and submits that in light of these reports there is a real risk the applicant will suffer significant harm if he is removed from Australia to Vietnam. It is submitted that the applicant will be detained upon arrival and there is a real risk he will be mistreated in the hands of the police.
The Tribunal accepts there are reports of the Vietnamese authorities mistreating persons held in custody. This is confirmed in the DFAT Country Report (31 August 2015) which refers to a Human Rights Watch report released in September 2014 and which reported abuses by police right across Vietnam between 2010 and 2014. The DFAT report however also goes on to say that most of the reported cases of abuse were allegedly inflicted on people suspected of minor offences such as traffic violations and petty theft. The Tribunal does not accept the applicant’s claim that he was arrested, detained and accused of inciting the tax protests, or that there is any evidence that he is suspected of any minor offence which might attract the attention of the police and thereby lead to him being held in custody. For these reasons, the Tribunal finds that the risk of the applicant being mistreated or tortured by the Vietnamese police is remote and not real.

100. Having regard to all of the evidence before it, the Tribunal does not find there is a real risk that the death penalty will be carried out on the applicant. The Tribunal also finds there is not a real risk the applicant will be arbitrarily deprived of his life. As the Tribunal does not find the applicant is of any interest to the Vietnamese police, it is satisfied that he does not face a real risk of being held in custody where he would face cruel or inhuman treatment or punishment, or degrading treatment or punishment. For these reasons, the Tribunal finds there are not 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.
101. 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).
102. 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).
103. 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
104. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.
Nicola Findson
Member

APPENDIX A
INDEPENDENT COUNTRY INFORMATION
105. The Department of Foreign Affairs and Trade (DFAT) Country Information Report – Vietnam – 31 August 2015 states the following respect of
Political activists
3.32 Article 25 of the Constitution guarantees citizens the right to ‘freedom of speech and freedom of the press, and have the right of access to information, the right to assembly, the right to association, and the right to demonstrate’. However, Article 14 provides for some limitations to these rights, stating that ‘human rights … may not be limited unless prescribed by a law solely in case of necessity for reasons of national defence, national security, social order and safety, social morality and community well-being’. There are a number of ‘national security’ provisions within Vietnamese law. For example, the Penal Code 1999 includes national security provisions such as Articles 79 (‘Carrying out activities aimed at overthrowing the people’s administration’) and 88 (‘Conducting propaganda against the Socialist Republic of Vietnam’). The Penal Code provides for penalties for these national security offences ranging from prison sentences of up to 20 years for participants in these activities to life imprisonment or capital punishment for ‘organisers, instigators and active participants’.
3.33 In practice, the government’s use of these national security provisions has decreased significantly over time. Penalties rarely exceed ten years imprisonment, but ongoing monitoring continues thereafter. DFAT is not aware of any recent cases of the death penalty being applied for political activities. Political activists have tended to receive shorter sentences in recent years, largely because of increased use of provisions other than the national security provisions to prosecute political activists. In particular, there has been an increased use of Article 258 of the Penal Code, which prohibits ‘abusing democratic freedoms to infringe upon the interests of the State, the legitimate rights and interests of organisations and/or citizens’. Article 258 carries penalties of between six months and seven years imprisonment, depending on the seriousness of the offence.
3.34 Freedom of political expression against the CPV, the government or its policies is generally not tolerated by the state. The government’s tight control of the media, civil society and civic spaces means that protests are rare. Permission to hold public demonstrations must be sought from government authorities and is rarely granted.
3.35 On 11 May 2014, peaceful protests were held opposing China’s placement of an oil rig in contested waters in the South China Sea (referred to in Vietnam as the East Sea). These protests were allowed to go ahead, although some activists were prevented from attending, and there were reports of some organisers being violently assaulted in the lead-up to the protests. On 14 and 15 May 2014, these protests escalated, with riots that targeted Chinese and other foreign-owned factories. At least three people were killed and hundreds of factories were damaged. Further protests planned for 18 May were shut down effectively by the government. While more violent, this sequence of events mirrored previous anti-China protests in 2011, which were initially tolerated but subsequently shut down. In May 2013, human rights activists organised 'picnics' in Ho Chi Minh City and Hanoi. Some of the picnics were forcibly broken up, with some participants briefly detained and others reportedly beaten.
3.36 In July and August 2013, a group of activists formed the so-called ‘258 Group’, aimed at promoting human rights and democracy in Vietnam. The group attracted international attention, including meetings with international representatives. It has been reported that subsequent to this, several members of the group and their families were subject to harassment and detention by Vietnamese authorities.
3.37 DFAT is aware of 18 human and political rights activists who were arrested or convicted between June 2013 and July 2014. Most sentences were for three years or less, although one activist convicted under Article 79 received a 15 year sentence with a further five years’ probation. This represented a significant reduction from the previous 12 month period, when 66 activists were arrested or convicted, 26 of whom received sentences in excess of 10 years, including one sentence of life imprisonment.
3.38 Political activists who have been released from detention may continue to be monitored by authorities. Activists who resume their activities following release from prison are often re-arrested.
3.39 Activists are frequently prevented from travelling internationally. For example, Pham Dac Dat and Nguyen Van Trang had their passports confiscated and were prevented from boarding flights to Australia on 7 July 2014 to participate in a conference at the invitation of an Australian member of parliament. Both are members of the Brotherhood for Democracy, an online group aiming to coordinate efforts to bring democracy to Vietnam.
3.40 DFAT assesses that the use of official force to control political activism, protests or perceived political opposition is generally used as a last resort by the state. The physical suppression of protests may range from the outnumbering of protesters by police, to the arrest of protest leaders, to use of riot control measures, including beatings, water cannons, pepper spray and tear gas. There are widespread reports suggesting that political activists who are outspoken in their opposition to the CPV, the government or its policies are monitored, harassed, intimidated, arrested and detained without charge. DFAT assesses these reports to be credible.

106. On the treatment of returnees, the DFAT report of 31 August 2015 states:
5.21 ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence under Article 91 of the Penal Code 1999. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. People returned to Vietnam are usually done so on the understanding that they will not face charges as a result of their having made asylum applications—for example, under the tripartite agreement between Vietnam, Cambodia and the UNHCR regarding the return of Montagnards to Vietnam.
5.22 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND 2 million and VND 10 million (approximately AUD$120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND 20 million and VND 50 million (AUD$1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
5.23 Notwithstanding this, DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity (people smuggling) rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally. While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in April and July 2015, as part of investigations into people smuggling operations. On 22 April, the Vietnamese Government invited the UNHCR (in a message conveyed by the Australian Government) to interview individuals who had been on board the vessel returned in April, including those who had been detained. At the time of release of this report, UNHCR had not sought to interview any of those individuals.
Returning Political Activists
5.24 Activists returning from overseas are likely to attract the attention of authorities on arrival. Activists returning voluntarily, particularly those from western countries, may be questioned on arrival by police. It is highly likely that surveillance activities targeting returned activists will resume on arrival. There are credible reports of the government maintaining lists of people who have been banned from returning to Vietnam. There are also reports of activists being told that once they return to Vietnam they will not be permitted to travel overseas again.
5.25 Activists returned involuntarily are held for a short period subject to an interview by Vietnamese immigration officials and police at the airport. On release, returned activists will be required to report to police for an indeterminate period of time. In some cases, returned activists will be encouraged to relocate away from areas frequented by former associates to diminish the chances of ‘reoffending’. Following their relocation or resettlement, police surveillance is likely to continue for some time, and conditions are likely to be set regarding activists’ ability to associate with other persons of interest to the police.

APPENDIX B
RELEVANT LAW
107. 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.
Refugee criterion
108. 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).
109. 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.

110. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
111. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
112. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
113. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
114. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
115. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
116. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
117. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
118. 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’).

119. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
120. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
121. 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.

[2018] AATA 286

15 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction