1502471 (Refugee)
[2017] AATA 3185
•29 June 2017
1502471 (Refugee) [2017] AATA 3185 (29 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1502471
COUNTRY OF REFERENCE: Vietnam
MEMBER:Mary-Ann Cooper
DATE:29 June 2017
PLACE OF DECISION: Melbourne
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 29 June 2017 at 5:37pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – religious activist – disobedience toward the authorities – destruction of government property – particular social group – failed asylum seeker – departmental data breach – credibility issues – bogus documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 45AA, 65, 91R, 91S, 91W, 91WA, 499Migration Regulations 1994 (Cth), r 2.08F, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Border Protection v SZTZI [2016] HCA 29
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437Selvadurai 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 11 June 2014 and the delegate refused to grant the visa on 6 February 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 appeared before the Tribunal on 19 January 2017 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 who also attended the hearing.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary issue in this review is whether there is a real chance that, if the applicant returns to Vietnam, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.
Background
The applicant claimed to be born in was born in [a] village, Nghi Loc district, Nghe An Province, Vietnam on [Birthdate 1]. He claims to be married with [children].
The applicant arrived in Australia on 23 March 2013 on board a [vessel].
Issues arose as to his date of birth and his mode of departure from Vietnam and these are discussed further below.
As recorded in the delegate’s decision, a copy of which was provided with his review application, the applicant’s entry interview was conducted on 3 May 2013. On 11 June 2014 he lodged this application and on the department interviewed him on 30 October 2014.
In the statement attached to his visa application, the applicant stated that he is a Catholic who attended church and was involved in organising events for the church choir and helping it financially. He claimed that gangsters hired by the authorities had disrupted a mass in Christmas 2012. He had protested to them and had been beaten up however the authorities had arrested and detained him. Later he claimed in February 2013 the authorities placed speakers outside the church and played music loudly, disrupting the choir practise. He claimed he had complained to the authorities who had the increased the volume in the speakers. He claimed he disconnected the cables nut the authorities reconnected them. Consequently at night he had removed the speakers. He claimed he was then chased by the authorities and he went into hiding in his sister’s house. He claimed that his wife told him the authorities had summoned him and he should not return home. He claimed the authorities continued to visit his house looking for him. He claims to fear persecution and death from the Vietnamese authorities if he is returned. He claims this is because he has been involved with church activities, that they are against all religion especially the Catholics.
Submissions made on his behalf claimed that he feared being persecuted by the Vietnamese authorities on the basis of his Catholic faith and arising from his imputed political opinion based on his profile as a prominent activist of a religious organisation, disobedience towards the authorities and destruction of government property. It was submitted that this also extended to his travel to a Western country and claiming asylum which means he will be treated with suspicion and subjected to serious harm.
Country of reference
The applicant claims to be a citizen of Vietnam. He has consistently claimed this to be the case and has submitted documents (including copies of his identity card and household register) to the Department that support this claim. Accordingly, the Tribunal finds, (as did the delegate), that Vietnam is his country of nationality for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.
Third country protection
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Delegate’s decision
The delegate had serious concerns as to the applicant’s identity noting different dates of birth in the documents provided. Investigations indicated that the date of birth had been altered on one of the documents.
The applicant’s various claims were discussed but, while accepting that the applicant was a Catholic and was responsible for the Church choir’s financial matters, the delegate did not accept that he was of any adverse interest to the authorities, particularly given his short period of detention and the lack of interest following his disconnection of the speakers. The delegate also noted that his claims regarding destruction of the speakers had not been made in his Entry Interview and the delegate did not accept that it was a truthful account but had been concocted to enhance his claims. The delegate did not accept that the applicant had the profile of a religious or anti-government activist or that he was of any interest to the authorities. While accepting that the harm feared, that is, being persecuted and possibly killed by the Vietnamese authorities, was conduct covered by s.91R(1)(b) and (c), and recognising that Nghe An province “has become a flashpoint of tensions between Vietnamese government and Catholics”, the delegate did consider that the fear was well-founded.
The hearing
At the hearing the tribunal initially addressed the anomalies in the applicant’s date of birth and asked the applicant why he had provided different dates. He responded that ‘people’ had told him to reduce his age and, because he had a lack of understanding of what was required, he just made it [his age] up. He said he later felt the need to tell the truth and had told the Department his correct year of birth. He claimed that he had given the Department and Serco original copies of documents evidencing his identity, including his date of birth, but they had lost them.
The tribunal further observed that the Household register documents he had provided the Department indicated his date of birth as [Birthdate 1] and [Birthdate 2]. It also noted the delegate’s comments regarding the opinion of the Identity Officer who had examined the documents provided by the applicant and who concluded that the applicant’s date of birth in the Household register had been altered to match his date of birth in his National Identity card. The applicant replied that his date of birth is [Birthdate 1] but because he had told the Department he was born in [Birthdate 2], his wife in Vietnam had engaged someone to alter the Household register to reflect his date of birth as [Birthdate 2]. In this context the tribunal raised s.91WA of the Act and the requirement that a visa be refused if a bogus document has been provided as evidence of an applicant’s identity, nationality or citizenship unless there is a reasonable explanation, It noted the definition of ‘bogus document’ as including a document that has been altered by a person who does not have the authority to do so. The tribunal allowed the applicant further time to provide submissions in this respect. These are discussed further below.
The applicant said he was educated to [a certain year] and on leaving school had been employed in his family’s farming business. After his marriage he said he had a small business buying and selling [goods] and had bought a truck. He stated that he had been employed up until the time he left Vietnam. The tribunal noted that the applicant’s visa application he had stated that he had been unemployed since December 2012 yet he had not left Vietnam until late February/early March. He responded that he had sold his vehicle in December 2012 with the intention of buying a new one but things happened in the new year and this did not eventuate.
Catholic religion
The applicant claimed he is of the Catholic religion and has been baptised and received the other sacraments. He claimed to attend church in [a suburb] on Sundays but could not name the parish, the church or the priest. He claimed the parish priest changed from one service to the next and he had only been in the area for a few months. Tribunal found his evidence in this respect vague and unconvincing.
In relation to his practice in Vietnam he said he went to church on Saturday or Sunday [and] at other times to Bible group in his [village]. He was able to name his local priests. When asked to what order the priests belonged, he did not know.
When asked his involvement in the church, he said he just supported the choir. When asked what this entailed, he said that he provided financial and emotional support. When asked to elaborate, he responded that it depended on what was needed. He said it might be food or drink or it might be money for instruments. He would ask other people to contribute/donate. The tribunal asked how he supported the choir emotionally and he gave the example of giving them a small present.
The tribunal noted the discrepancies in relation to his accounts of his involvement with the choir. Specifically, in his entry interview he had said he was in charge of the choir and prepared all the songs. Later he claimed he just worked on the sound and lights. The delegate’s decision recorded his evidence that he was in charge of finances. The tribunal asked how he accounted for these discrepancies/inconsistencies. He denied saying that he was in charge of the choir in his entry interview. The tribunal went to the record of interview and read out what was recorded. He responded that whether or not he was in charge was irrelevant, the choir called him “father”. He then said that “in a way” it could be said he was in charge but denied that he ever said this. The tribunal found his responses in this regard convoluted and unconvincing.
The tribunal asked him about the events of Christmas 2012. He said it was a significant event with many people attending the church, some Catholics, some just observers. Outside the church was a group of people on motor bikes who started to revving their motors and disrupting those in the church. He claimed he told them to stop and this caused a fight. He claimed the village police arrived and he was taken to their office. He said he did not know what happened to the others. He claimed that instead of protecting him they had accused him of causing trouble and wanted him to sign an admission of guilt, which he refused to do. He claimed he then was detained. He said the police wanted to fine him 2 million dong. He said he refused to pay however his wife came and paid the fine. He said he was then released, which was the next day, the 25th December. The tribunal noted that this was the first time, on its understanding of his claims that he had claimed to have been pressured to sign a confession or any other document. It also noted an apparent inconsistency in the account of what occurred. Specifically, in his statement he claimed that his wife had paid the fine and he was released the day after he was taken to the station. In the submission provided to the tribunal it was claimed his wife had been required to pay a bribe to secure his release. He claimed that when he had been interviewed on his arrival he was not given an opportunity to say what he wanted to say. He maintained that he had told the interviewer that he had been pressured to sign a confession in a recent interview. He was unable to specify which interview. The tribunal noted the issue of the bribe was not included in his later provided written statement. He made light of the difference, saying that whether it was a fine or a bribe is “no big deal.”
The tribunal also noted that in his written statement he had stated that the ‘gangsters’ who had come to the church at Christmas had been hired by the authorities. It asked the applicant how he had known this. He responded that it was only a guess but normally, where there is a group of people gathered they will harass a person and when the authorities intervene they will arrest/detain the person being harassed.
The tribunal then asked the applicant about the mid-February incident at the church. He said they were preparing for Saint Joseph’s day and the choir was practising when the People’s Committee installed two speakers and faced them towards the church. He claimed that music and announcements were played through them and it made it hard to practice. He claimed he went to the local authorities to complain but they ignored him. He said he was upset and angry so he ripped out the cords, disconnecting them from the speakers. He claimed the authorities did not know it was him. He thought they had just considered it was a technical issues and had reconnected them. He acknowledged that there were no consequences to him as a result if his disconnection of the speakers. The next day however he claimed that he climbed up [the poles] and cut the cords to the speakers and one fell down. The noise of the impact had caused the dogs to bark and people he knew started to come out and an alarm was raised. He said he was scared and ran away. He said ‘they” chased after him and he went to his sister’s place because he was scared and did not want to go home. When asked who chased him, he did not know. The tribunal noted that in his statement he had claimed it was the authorities, but in submissions made on his behalf there was no such claim. He responded that he was 100% sure it was someone in authority because the person who raised the alarm was usually such a person. He said the police station was also close by. The tribunal asked why they had not arrested him. He claimed that they lost sight of him. The tribunal further noted that in his statement he had said that the there had been 10 days between his first disconnection of the speakers and the second disconnection however in his oral evidence he said it had been the next day. The tribunal asked him to clarify the dates. He claimed that when he said the day after he meant 10 days after. The tribunal asked why he had cut the speaker cords and not someone else in the parish. He said it was just his personality, he was a member of the congregation and if he is angry then he will do something. The tribunal noted that it was likely a crime or offence to damage public property such as the speakers. He acknowledged this but stated that he could not let them suppress him and so he had no other option. The tribunal commented that it was difficult to see how this was a suppression of his religion. He said it was his assumption that since the 2012 incident the authorities needed a reason to arrest him again and so they had entrapped him. The tribunal observed that he had voluntarily climbed the pole and disconnected the speakers and it did not appear to be entrapment. He responded that he had done what he should do, which was report the disturbance, but the authorities did not deal with it. He had to protect his religion and he could not let them continue so he had to do it, even if he lost his life as a consequence.
The tribunal asked about the events which followed. He claimed his wife called and said it was too dangerous for him to go home and he began to organise to leave the country. He confirmed that his family received a summons and he had provided it to the Department. With the applicant’s agreement, the interpreter translated it. In summary it was a summons from the police to the applicant to attend the police station [in] February 2012 to “discuss the speakers.” The tribunal observed that he was being summonsed because he had destroyed public property not because of his religion. He responded “that’s right.” It asked him why he ran away instead of being accountable for his actions. He responded that the previous time he had got away but this time he would be beaten to death. When asked why he thought this would happen, he responded that once the Communists target you it is unavoidable. He said they threw a bait and he took it.
The tribunal inquired if he would describe himself as an activist. He replied that it depended on perception. He said he did not think so, he was an ordinary person, lived normally and was not in any organisation or political group. He had not undertaken any military service. He confirmed that, other than the incident at Christmas, he had never been charged with any offence.
The tribunal noted that the damage to the speakers and consequences were an integral part of his claims yet he had not raised this incident in his entry interview. He maintained that he did make the claim. The tribunal read out his response at interview. He stated that he only answered what he was asked and that the interviewer might have not fully understood what he was saying. He also claimed that he had not had a full opportunity to tell his full story.
The tribunal then asked the applicant about his travel to Australia. He claimed he paid 180 million dong to a people organiser and he departed illegally [by] boat. The tribunal noted that in the applicant’s visa application he said he had legally departed Vietnam from Ho Chi Minh airport on his passport. He maintained that he did not depart this way. He confirmed that his legal representative had assisted him with the form and the tribunal observed the interpreter’s signature on his statement. The tribunal noted that the visa application also stated that he had included a copy of a letter from his church and a copy of his summons. The applicant confirmed he did provide these documents. The letter from the church was also translated by the interpreter. It purports to confirm that “[Mr A]” was a father (patron) of the choir from 2004 – 2012. When queried about the name on the document, the applicant claimed “[Mr A]” was his religious name. The tribunal considers the discrepancy in his account of the method of his departure from Vietnam, given he was assisted by a lawyer and an interpreter with his visa application, undermines the credibility of his evidence in this regard.
When asked what identity documents he took with him, he said he had his driver’s licence and National ID card but, because he had not had enough money the people organiser had kept them and only released them when the money was paid. The tribunal asked when this occurred. He said he thought May or June. The tribunal queried his apparent ongoing engagement with people smugglers after his arrival in Australia. He said he had not contacted them but his wife had a friend who got in touch with the smugglers to pay them the money and they had released the documents.
The tribunal raised again the discrepancies in his accounts of the incidents before his departure, specifically, in his entry interview, it appeared he only raised one incident, his disconnection of the speakers. It noted that on this basis the delegate did not believe he had destroyed the speakers and considered he had embellished his claims in order to enhance his protection application. The applicant said he had only been asked why he left, not if anything had happened to him. He maintained that if he returned his life will be at risk, that he will be imprisoned and other things might happen to him. The tribunal suggested that the only interest the authorities had in him was because he damaged public property. He responded that if he returns he will be dealt with in many ways.
The tribunal raised the issue of the Department’s data breach and asked the applicant if he wished to make any claims in this regard. He said he did not know whether this placed him at increased risk. He said he did not know the consequences and did not want to use it as a reason [presumably for not wishing to return]. He maintained he could not relocate in Vietnam. He said he was lonely and wanted to be with his family.
The tribunal then took the applicant to the available country information. It acknowledged the past difficulties between church and authorities in Nghe An province however noted no recent reports of conflict between Catholics and the authorities. In particular there were no reports of any conflict in his particular district. The tribunal also referred to the DFAT country report which noted that several new Catholic churches had been registered and some restrictions lifted on charitable affairs. In particular it was observed that Catholics who worship quietly were at low risk of official interference[1]. It also noted a recent report stating that “normal Roman catholic (Catholic) church activities have been reported in 2015-2016 in Vinh Diocese (including Nghe An province and Nghi Loc Catholic parish). No reports were located of conflicts between Catholics and government authorities in 2015-2016 in Nghe An province.”[2]
[1] DFAT Country Information report – Vietnam – 31 August 2015 at paragraphs 3.19,3.22 and 3.24 (DFAT Report)
[2] Vietnam: VNM CI160222173118213 – Roman Catholics in Vietnam: 3 March 2016
In his response, the applicant stated that what he did was within a small village area, it was not a big or well-known case. Furthermore, he said that the government is known for saying one thing and doing another, if they can find any reason to blame a person they will and they will never publicly acknowledge that it was because of the person’s religion.
In relation to his claim to fear harm on the basis of his return as a failed asylum seeker, the tribunal again referred to the DFAT report, noting its acknowledgement that under the Vietnamese penal code it can be an offence to flee overseas with view to opposing the people’s administration however the Department was unaware that it had ever been used against failed asylum seekers.[3] The tribunal noted the incident referred to in the submissions made on the applicant’s behalf in this respect but observed that the 4 people out the 46 returned who were arrested and charged, appeared to have been involved in the people smuggling, and were not the victims. The tribunal noted its observation that the applicant would not be charged or otherwise harmed on the basis that he had returned as failed asylum seeker.
[3] DFAT report Vietnam
The tribunal also noted that the report indicated that Vietnamese nationals who depart unlawfully may be subject to a small fine under Vietnamese law, which can be between 10-2m dong, but people who pay money to smugglers are viewed as victims of criminal activity rather than as criminals. It was acknowledged that some returnees may be briefly detained and interviewed but that they would only be susceptible to long term detention where they were suspected of organising people smuggling. There was no reliable information to suggest that asylum seekers were subject to any different treatment to others who returned to Vietnam after departing illegally.[4]
[4] DFAT report paragraph 5.21
The tribunal accepted that the applicant might be detained and liable to charge on return to Vietnam because of his public property damage but said that such a charge would be based on laws that applied to all Vietnamese not just Catholics. In addition, even if he was fined for departing illegally, this would not be for any of the five Convention reasons but simply because he broke the law and departed the country unlawfully. That is, that this may be a risk for population generally who depart against the law, not just him personally. Even if it was accepted that he may face a fine and a short period of questioning, this may not be considered to amount to serious or significant harm as defined.
For all these reasons, the tribunal told the applicant that the tribunal may conclude that his risk of harm because he is a Catholic, or for his imputed political opinion or as a failed asylum seeker, is remote.
The applicant responded “that’s what you say but I know what I did.” He said he knows the country well and the risk and the danger he faced on return.
In summary the Tribunal commented that the country information and discrepancies in his account of events, as highlighted during the hearing, also led the tribunal to doubt the credibility of the claims he had made in relation to the events which occurred and his treatment by the authorities. It highlighted his differing accounts of his role in the church, his differing accounts of events that occurred leading to his departure and his differing account of how he departed Vietnam. On this basis the tribunal said it may think his claims had been embellished or exaggerated, that he was not in fact of any adverse interest to authorities and therefore the chance of him experiencing serious or significant harm on being returned to Vietnam is remote. Specifically, on the information before it, and the country information, as set out above, the tribunal may not accept that there is any basis to find that the applicant will be seriously harmed by the authorities, police, or anyone else for reasons of his religion, imputed or actual political opinion or for any other Convention reason on return to Vietnam, now or in the reasonably foreseeable future.
The tribunal also told the applicant that its concerns as to his credibility, looked at cumulatively, with country information may also lead it to form a view that there are no substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Vietnam that there is a real risk that he would suffer significant harm within meaning of the complementary protection provisions either as a member of the Catholic religion or because of his imputed political opinion or because he had returned from the West as a failed asylum seeker.
The applicant acknowledged the tribunal’s comments but affirmed one more time that he knew what he has and will experience if he is returned to Vietnam. He replied that it was “up to” the tribunal. The tribunal asked why he thought he would be killed. He referred to the cruelty and intention of authorities, that he had been like a fish taking bait. That it was not speculation. The tribunal asked if he could relocate and he said it was not simple to move. That the authorities might disagree and a person cannot do anything.
The tribunal allowed some time for further submissions which were later received.
In those submissions the applicant’s representative addressed the concerns raised by the tribunal in relation to the applicant’s identity documents, in particular, s.91W. It was claimed that the applicant was instructed by others to alter his date of birth so that neither he nor his family could be traced by the Vietnamese authorities. After getting legal advice, he realised this advice was incorrect and so he had his original documents sent from Vietnam however Serco had taken and lost them. It was submitted that, in seeking to safeguard his family, this should be accepted as a ‘reasonable explanation.’ The tribunal accepts the claims made as plausible and notes that the applicant has attempted to provide the original documents but, through no fault of his, they have been lost. On this basis it considers this a reasonable explanation and does not rely on s.91W.
In relation to the credibility of the applicant’s claims, it was submitted that he was held or a long period of time and may have been apprehensive to forward his claims. The Department’s data breach compounded this apprehension. It was claimed that as he became more familiar with the process he was able to fully articulate his claims. In relation to the inconsistencies regarding his role with the choir, it was claimed that his evidence was consistent overall in this regard and suggests he was an integral member of his church community, specifically the choir. In relation to the different accounts of his mode of departure from Vietnam, it is claimed that his application form was erroneously completed and should not undermine his consistent testimony in respect of his departure.
In relation to the tribunal’s comments regarding the applicant’s conduct and laws of general application, the submission maintained that the applicant would be punished over and above the usual penalty because of his religion and perceived anti-government opinion. Submissions were also made which were generally consistent with those made previously regarding his return as a failed asylum seeker and his imputed political opinion.
Assessment of claims
Credibility
The applicant claims that he will be harmed on his return to Vietnam because of his Catholic religion, because of his imputed political opinion and because he is returning as a failed asylum seeker from the West. It is also claimed on his behalf that the harm will be compounded as a result of his details being disclosed by the Department’s data breach.
The Tribunal acknowledges the importance of adopting a reasonable approach to credibility findings. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and 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). 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.
The Tribunal is not, however, 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 mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Having regard to all the evidence in this case, and to the relevant principles set out under the Relevant Law section of this decision record, and to the Tribunal’s Guidelines on the Assessment of Credibility, the Tribunal considers that the applicant is not a reliable witness and significant claims made by him and on his behalf are not credible. The Tribunal also finds other aspects of the applicant’s claims and his circumstances accumulate to undermine the credibility of his protection claims overall. In particular, the Tribunal has real concerns with the applicant’s evidence of events which he claims to have directly experienced. On the fundamental question of the nature and number of incidents leading to his decision to depart Vietnam, he has given contradictory accounts, such as his claims made at the Entry Interview compared to his subsequent claims. The Tribunal accepts the applicant may have been unfamiliar with his environment and the relevant procedures, and accepts that detail may be added in later written or oral statements, however, it also considers in this particular case the failures of the applicant to refer to what he claimed in his oral evidence was the catalyst for his departure, that is, the third incident in which he claimed he took down and/or damaged the speakers and was chased by the authorities, is a serious and material omission that significantly undermines the credibility of his claim that he feared, or fears, serious or significant harm and/or that the fear is well-founded. The tribunal considers this omission in his entry interview crucially undermines his later claims in this regard and indicates that these later claims are confected or at least a gross exaggeration of his experiences
Consequently for these and other reasons below, the tribunal does not accept his claims in this regard are credible.
His claims in relation to his departure from Vietnam in March 2013 are also contradictory. While he states in his visa application that he arrived in Australia by boat, he responded that he left Vietnam legally, that is, from Ho Chi Minh Airport, using his genuine passport which he further responded had no difficulty obtaining in Vietnam. Other responses in the application indicate that he travelled from there to [Country 1] and left from [Country 1] by boat for Australia. When asked about this at the hearing the applicant provided no clarification other than maintaining he left from Vietnam by boat. The submissions made on his behalf stated that the forms had been erroneously completed and that given the applicant’s lack of understanding of English this should not be relied upon to undermine his credibility. The tribunal notes, as it did at the hearing, that an interpreter was present and has also signed the documentation completed by the applicant on that day. In addition the applicant was represented by a lawyer. He has signed the declaration the information provided is true and the lawyer has also witnessed his signature. On this basis the tribunal does not accept that the responses were ‘erroneously completed’ and considers it more plausible that the applicant did leave Vietnam legally.
On the basis of these significant discrepancies in his accounts of what occurred and what was the catalyst for and means of his departure, the Tribunal considers that the applicant has exaggerated his claims in order to strengthen his protection claims.
The Tribunal has taken into account the submission that the use of interpreters sometimes impedes the accuracy of evidence and claims should not be disregarded on the basis of ‘small inconsistencies’ however there was nothing specific brought to the Tribunal’s attention in this regard. In addition no complaints were made at or after the hearing in relation to the interpretation provided at the hearing. In this context, the Tribunal does not regard the inconsistencies that it has identified as ‘small’ but considers that they go to the heart of the applicant’s claims as to why he fears return to Vietnam.
For these reasons the Tribunal does not accept that the applicant genuinely fears harm for any of the reasons claimed, or that he is at risk of harm from the Vietnamese authorities for reasons claimed. On the contrary, the evidence before the Tribunal strongly suggests that the applicant has exaggerated and embellished his claims in order to bring his profile within those persons to whom Australia has protection obligations, and also to suggest that there is a real chance that he will suffer similar harm in the future if he returns to Vietnam.
The Tribunal’s specific findings are further discussed below.
Catholic religion/Imputed political opinion
The applicant claims that he will be at risk of harm due to his Catholic faith if he is returned to Vietnam.
In summary, regarding his claims to fear harm on the basis of his religion, the submissions made on the applicant’s behalf asserted that, because of his ‘ongoing past dealings with the authorities and the fact he fled the country’, the applicant is viewed as an activist in the church by the authorities and he fears harm on this basis. As noted above, it was further submitted, in response to the tribunal’s observation that the authorities may be looking for him because of his destruction of the speakers and this was a law of general application, that the applicant would ‘likely’ be punished above and beyond the usual penalty’ due to his religion and perceived anti-government opinion. The tribunal notes that the ‘likelihood’ of this occurring was not supported by any other material or evidence.
There is very little in the evidence before the Tribunal (that is, aside from the written submissions) which indicates or even suggests that the applicant had any fear or experienced any harm by reason of his religion. There was no claim or any evidence that indicated his church or congregation had been targeted.
Of the independent country evidence provided, only one article was specific to the applicant’s province. It was the 2013 USCIRF report which referred to incidents in 2012. The tribunal considers its later country information, referred to above, is more recent and authoritative and it gives it more weight. It also notes that the 2017 USCIRF report on Vietnam, while recognising the continued harassment of unregistered churches, stated
The Vietnamese government has taken notable steps to improve religious freedom conditions in the country.
Many individuals and religious communities are able to exercise their religion or beliefs freely, openly, and without fear. In many communities, religious organizations and local officials get along well, with little to no government interference
…
In general, religious organizations recognized by the government fare better than unrecognized groups. Despite clear improvements, the Vietnamese government either directs or allows harassment and discrimination against unregistered, independent religious organizations, particularly those that also advocate for human rights and/or religious freedomThe Catholic church in Vietnam is registered and in this context the concerns raised in the 2017 report do not generally apply to its adherents. The submissions relied on by the applicant also discussed the situation of religious and human rights activists who continue to face serious harm. The applicant specifically denied that he was an activist or otherwise engaged in any political activities and the tribunal does not accept that the applicant falls into any of these categories. It is further asserted that the Vietnamese authorities “show a great hatred towards Catholics especially individuals like the applicant who are instrumental in their Church community.” The submission does not articulate what is meant by ‘instrumental’. The Tribunal accepts the applicant’s consistent evidence that he is Catholic and that he may have undertaken volunteer work associated with the church choir however it does not consider that this is appropriately characterised as his being “instrumental” in his community. The Tribunal also considers the use of the phrase “great hatred” is not supported by the information relied upon in the submissions or any other independent information. In particular it notes that this information concerns a government crackdown on religious groups operating outside official government registered churches whereas the Catholic Church, to which the applicant belongs, is registered. Similarly the articles referred to note the USCIRF reports of 2013 and 2015 which record that the Vietnamese government continues to control all religious activities through law and administrative oversight but the submissions do not note the additional comments indicating that religious freedom for those in registered groups, such as the applicant, is generally respected.[5] Therefore, on the basis that the reports relied on are largely inapposite to the applicant’s evidenced circumstances, the tribunal, contrary to the submissions made, places little weight on them as indicating that that the applicant faces a real chance that he will be persecuted upon his return to Vietnam on the basis of his religion or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk he will suffer significant harm on this basis. .
[5] United States Commission on International Religious Freedom (USCIRF) Annual Report 2013 : Vietnam at pages 3-5 and 9-10.
As noted above, other country information was put to the applicant, specifically, the DFAT Country Information report on Vietnam, dated 31 August 2015, which the Tribunal considers authoritative and to which it accords significant weight. It was noted that the Catholic Church is registered in Vietnam and in recent years has had some restrictions on charitable activities lifted. It also notes that a number of new church congregations were approved in 2013, mostly in the Central and Northwest Highlands areas, in response to increased demand from the growing Catholic communities, although many more registration requests were still pending. While it was acknowledged that members of independent Catholic groups opposed to government policies have been subject to harassment by authorities, reliable sources suggested that over 30 activists associated with Catholic churches had been arrested since 2011 (out of an estimated Catholic population of approximately 6.5 million). DFAT assessed that, broadly speaking, as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the government (which can be broadly defined and include land use issues) that religious adherence is tolerated. It is further acknowledged that people who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action to curtail their activities however Catholics 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. It is further stated that DFAT is not aware of credible claims of societal abuse or systematic discrimination based on religious practices.[6]
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015 at 3.19 and 3.24.
The Tribunal accepts that there are restrictions on religious freedom in Vietnam and there have been reports of Catholics opposed to government policies being harassed however there is no evidence or claim before it that the applicant has demonstrated such opposition. It accepts that he has been the subject of adverse attention on the basis of his interference and/or destruction of the speakers but it does not accept that the applicant has ever been harmed or targeted by the authorities or ever has been of adverse interest to them on the basis of his religion. His religion is incidental to the activity that brought him to the attention of the authorities. Furthermore, as noted above, the tribunal is not satisfied that the applicant’s entire journey to Australia was by boat. For reasons noted above, it prefers his account in his signed, witnessed and interpreted visa application that he departed Vietnam legally with his own passport which he had no difficulties obtaining. This indicates that on his departure from Vietnam he was not of any adverse interest to the authorities.
It was submitted that ‘given the applicant’s imputed profile as a prominent activist of a religious organisation, and his previous disobedience towards authorities, including the destruction of government property, we submit there is a real risk he would be perceived to be a religious activist and a political dissident and be subjected to harm upon return to Vietnam.”
For reasons previously given, the tribunal does not accept that he has ever taken part in activities that are inconsistent with government policies or practices or been prevented from practising his religion in Vietnam. Given his history, it also does not accept that he will or will wish to involve himself in any activities that oppose the government in Vietnam or that he will desist from doing so due a fear of harm, rather it would be through a lack of personal interest.
The Tribunal does not accept that there are any grounds for finding or accepting that he has been imputed with political opinion or is otherwise regarded as a dissident.
On the basis of the consistent evidence before it, the Tribunal accepts that the applicant is a Catholic and was questioned by his local police about his engagement with persons outside the church who had disturbed its service. The Tribunal does not consider it remarkable that local authorities would become engaged in such a dispute. The Tribunal does not consider that such treatment amounted to either serious harm or significant harm and on the evidence before it, does not accept that this contact was due to any systematic and discriminatory conduct related to his religion or any other Convention ground.
There is nothing in the evidence that persuasively indicates anything detrimental has happened to his family since he left Vietnam the tribunal does not accept as credible the claim that the authorities have been to visit his family searching for him. This is because they would have been aware he had lawfully departed the country.
On the basis of the evidence before it, the Tribunal finds the applicant’s profile is that of an ordinary practitioner who did not engage in any activities apart from regular church attendance and occasional voluntary work. The Tribunal does not accept that if the applicant returns to Vietnam that he will engage in any activities additional to his ordinary practise of his Catholic faith such as protesting against the government. Therefore, on the basis of the applicant’s profile as an ordinary practising Catholic who attends a registered church for services and did not hold any position within the church or engage in activities beyond regular church attendance and some voluntary work, the Tribunal finds the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he returns to Vietnam for reasons of his Catholic religion or an imputed political opinion based on his Catholic religion.
Further, based on his individual circumstances and the independent country information considered as a whole, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm on this basis.
Returnees who have departed Vietnam illegally and been returned to Vietnam/Imputed political opinion
The applicant claims to fear harm due to his imputed political opinion given he has travelled to a Western country and claimed asylum. It is claimed that this fear is compounded by the release of his bio data details by the Department, (although the applicant specifically denied this in his oral evidence).
The Tribunal has consulted country information which discusses the general situation of returnees who left Vietnam illegally.
As raised with the applicant at the hearing, the DFAT report states that people who left illegally and return do not face charges but they may be subject to a fine. Those who paid people smugglers are considered victims of crime rather than as criminals. The report acknowledges that some returnees who unlawfully departed may be detained briefly but not for long-term detention.
Specifically, DFAT have relevantly commented:
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.[7]
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.
The evidence does not indicate that the applicant has been or will be involved in organising people smuggling and therefore there is no reason to suspect he was or will be accused of this. As noted above, the country information provided in submissions regarding the treatment of persons who had departed unlawfully and been returned relates to persons who have been determined to have been engaged in people smuggling (paragraph 52).
As also previously discussed above, the Tribunal does not accept as credible the applicant’s claims regarding the mode of his departure from Vietnam or that he destroyed the speakers. As previously discussed, this is because of the significant discrepancies in his accounts, and the escalating nature of his claims.
Even taking into account and accepting his claim that on his arrival in Australia he had been unsure of how much he could safely disclose, this does not sufficiently explain/account for the escalating seriousness of the claims he has made of his conduct and his treatment.
In addition, when he departed Vietnam, the applicant had acquired a passport and left legally. It defies credibility that if he was of adverse interest to the authorities, and was wanted for further questioning over his actions in relation to the speakers, that he would have been able to leave so freely. The fact that he was issued a passport and left Vietnam legally using his own passport indicates he was of no adverse interest to authorities. Therefore, consistently with the country information, the Tribunal considers that the authorities would have little interest in him in this regard.
The laws of Vietnam create an offence for illegal departure and in this context, even if the tribunal is wrong and the applicant did depart illegally, his possible detention and questioning on return are unremarkable. The Tribunal considers that the provisions of the law that deal with irregular departure are not expressed in terms that are discriminatory on their face or reveal a discriminatory intent or impact. There is no evidence before the Tribunal that this law is being applied in a discriminatory way. In this context it considers the enforcement of this law of general application against the applicant would not constitute discriminatory conduct and that the law is not selectively enforced and does not have a different impact on different groups. That is, it does not involve systematic and discriminatory conduct as required by s.91R(1)(c). It is a real risk faced by the population generally (who breach the illegal departure law) and not the applicant personally under s.36(2B)(c).
Based on his individual circumstances and the independent country information, the Tribunal does not accept that, even if the applicant did depart illegally, on his return to Vietnam, he will be regarded as a dissident and/or that he has been imputed with a political opinion adverse to the government or authorities. It follows that it does not accept that the applicant faces a real chance of serious harm on the basis of his actual or imputed political opinion and therefore considers he does not have a well-founded fear of persecution on this basis.
In addition, for the above reasons, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm on this basis.
Return as failed asylum seeker/ Member of particular social group/ Data breach/Imputed political opinion
100. As previously noted, it is also claimed that the applicant will be harmed on his return to Vietnam because he would be returning as a failed asylum seeker from the West and that this harm will be compounded as a result of his details being disclosed by the Department’s data breach. In submissions it was also claimed that, in relation to the data breach, there is a real and not remote chance that the Vietnamese government could have obtained the applicant’s bio information which in addition to the prior information could classify him as a political dissident.
101. The Tribunal acknowledges the applicant’s expressed fear of his return to Vietnam and accepts that he may the subject of attention from the authorities on his return. For the reasons set out below, the Tribunal does not accept that the applicant faces a real chance of persecution for reasons of his return as a failed asylum seeker from the West.
102. As raised with the applicant at the hearing, DFAT have commented that “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 but they are unaware of any cases where this provision has been used against failed asylum seekers. DFAT state that they have no information to suggest that people known or believed to have sought asylum in other countries receive different treatment from the Vietnamese government for having sought asylum. It is understood that the Vietnamese Government's view is that such individuals are generally doing so to achieve residence in countries such as Australia for economic reasons.[8] They assess that, in general, those who have been detained upon their return have been detained primarily for their political views, held or imputed, rather than the fact that they have sought asylum.[9] In addition, DFAT has not received information suggesting different treatment being applied by the Vietnamese Government to persons known or believed to have sought asylum in other countries unless they were involved in trafficking.[10]
[8] Department of Foreign Affairs and Trade, "Treatment of failed asylum seekers on return to Vietnam", Department of Foreign Affairs and Trade (DFAT), 24 July 2013, CX311927
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015 at 5.29.
[10] Op.cit. at 5.28
103. The Tribunal does not accept on the information before it that the applicant will be put in jail or otherwise harmed as a failed asylum seeker. While the Tribunal notes the independent information referred to by the applicant’s representative in its submissions to the Tribunal, in particular the ABC report of 26 May 2016 which reported that of 46 asylum seekers returned to Vietnam, four were jailed. According to the further details in the report it appears that those identified had been imprisoned as a result of being involved in “leading roles” in organising the trip. This is consistent with the DFAT country information that the Vietnamese government is only interested in people involved in people smuggling operations. Given this and the applicant’s evidence of his circumstances, the Tribunal does not accept that the applicant falls within the profile of those people who may face harm on their return to Vietnam.
104. The applicant has not claimed that he has ever expressed any political views and the Tribunal finds there would be only a remote, if any, chance that he will be of any adverse interest to the authorities on account of any actual or imputed political opinion in this context.
105. Having had regard to the submissions made on this applicant’s behalf in this respect, and his evidence, it does not accept, for reasons stated above, and the overall lack of credibility of his evidence, that he has been imputed with political opinion as a dissident because of his failed asylum applications, and/or as a consequence will suffer harm amounting to persecution on basis of imputed political opinion. While it accepts that he may be questioned on his return it is not satisfied that he has more than a remote chance of being subjected to persecution on this basis.
Membership of this particular social group.
106. In considering this issue, the Tribunal has applied the principles in Applicant S ((2004) 217 CLR 387) and considers that persons who return to Vietnam as failed asylum seekers could be regarded as forming a particular social group, however, for the reasons set out below, the Tribunal does not accept that the applicant faces a real chance of persecution for reasons of his membership of this particular social group.
107. As previously noted, it is DFAT’s assessment 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. The Tribunal accepts DFAT reports that activists returning from overseas are likely to attract the attention of authorities on arrival, and that they may be questioned on arrival by police. It also accepts that surveillance activities targeting returned activists will resume on arrival. The Tribunal does not accept however that the applicant is an activist religiously or politically, it does not accept the applicant will be targeted for this kind of attention if he returns to Vietnam as a failed asylum seeker.
Data breach
108. In the context of the applicant’s claims concerning his return to Vietnam as a failed asylum seeker, he claims his fears are further compounded by the Australian government’s data breach of February 2014, prior to his protection visa application, when several asylum seeker names and limited details were posted on line.
109. Regarding the data breach, the High Court in Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 (27 July 2016) at 90 noted that in the circumstance of the data breach that assuming a foreign government had accessed the information, ‘was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department's website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time.’
110. The Australian Privacy Commissioner’s investigation found that the inadvertently released information included full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival, details and reasons why the individual was deemed to be unlawful.[11]
[11]
111. The Tribunal accepts that the information may be available to the Vietnamese government and that the type of information includes that listed above however it does not accept that this would compound any potential negative circumstances of the applicant on return to Vietnam. This information did not disclose if detainees had made any protection claims and the disclosure occurred prior to the applicant lodging his protection visa application. The Tribunal therefore finds that the details of the applicant’s protection claims, or the fact that he has made such a claim, have not been made available to the Vietnamese authorities. As also noted above, country information confirms officials do not prejudice returnees who have sought asylum and the penalty for those who have left illegally is a fine. The tribunal considers that the applicant last left the country legally. Therefore the applicant would not be distinguished from the general group of returnees reported on by country information.
112. Having regard to all the evidence before it, and to its findings that the applicant is not a religious or political activist, and does not have an adverse profile in the eyes of the Vietnamese authorities, the Tribunal finds that even if the data was accessed by them, which it is not satisfied it was, there is no reason why the applicant would be targeted for harm by the Vietnamese authorities as a result of the data breach.
113. While the Tribunal accepts that the applicant may be questioned on his return, it does not consider that given his background, profile or act of seeking asylum in a Western country, he would be detained for an extended period, but would be released shortly after being interviewed without being harmed.[12]
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015 at 5.23.
114. Given the totality of the country information and the applicant’s individual circumstances, the Tribunal finds that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he was to return to Vietnam as a failed asylum seeker, either from the West or [Country 1], or that having applied for asylum has raised his profile in any relevant respect, whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers returning, either generally or from [Country 1] or a Western country).
115. Further, based on his individual circumstances and the independent country information, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.
Cumulative assessment
116. The Tribunal considered each of the applicant’s claims individually and on each claim finds the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future if he returns to Vietnam. The Tribunal has also considered all of his claims cumulatively, and having done so, for the above reasons, still finds the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future if he returns to Vietnam.
117. On this basis, the Tribunal finds the applicant does not face a real chance of serious harm for one or more of the Convention related claims. The Tribunal therefore finds the applicant does not have a well-founded fear of persecution and does not satisfy s.36(2)(a) of the Act.
COMPLEMENTARY PROTECTION OBLIGATIONS
118. As previously noted, on the basis of the applicant’s claim to be a national of Vietnam and documentation submitted in support of his application, the Tribunal finds that Vietnam is the applicant’s receiving country for the purposes of s.36(2)(aa).
119. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
120. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Vietnam will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
121. The Tribunal has considered whether as a Catholic the applicant faces a real risk of significant harm as defined in s.5(1) of the Act. The Tribunal refers to the country information before it, including the submissions made on his behalf, and taking into consideration the applicant’s profile as an ordinary Catholic who did not engage in any activities beyond mass-going or volunteer work at a registered church, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhumane or degrading treatment or punishment from the Vietnamese government or authorities because of his Catholic religion.
122. The Tribunal is also not satisfied on the independent information that there is a real risk the applicant would face significant harm on arrival in Vietnam as a person who has failed to obtain protection in Australia or the west generally. The Tribunal refers to the advice from DFAT that they have no information to suggest that people known or believed to have sought asylum in other countries receive different treatment from the government of Vietnam for having sought asylum. While Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return, the tribunal considers the applicant last left the country lawfully. If the tribunal is wrong, and he did depart unlawfully, the Tribunal notes that for the reasons discussed above, it does not accept that he would be targeted on his return. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Vietnam there is a real risk he would suffer significant harm at the hands of the Vietnamese authorities or government because he is a failed asylum seeker, some of whose details were inadvertently released, or because he has previously departed the country unlawfully and been returned.
123. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
CONCLUSION
124. 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).
125. 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).
126. 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
127. 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.
Mary-Ann Cooper
Member
Office of the Australian Information Commissioner, “Department of Immigration and Border Protection: Own motion investigation report”, November 2014 [accessed 3 August 2016]
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Statutory Interpretation
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
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