1504822 (Refugee)

1504822 (Refugee) [2017] AATA 1195 (29 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504822
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Mary-Ann Cooper
DATE:29 June 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 29 June 2017 at 4:18pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Religion – Christianity – Serious harm from Vietnamese government – Relocation not possible – Government perpetrator of harm

LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

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 [in] November 2013 and the delegate refused to grant the visa [in] April 2015.
The applicant appeared before the Tribunal on 31 January 2017 and 1st March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his guardian, [name]. 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.
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.
Effective protection measures
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
Sur place claims
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
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.
Country of reference
The applicant claims to be a citizen of Vietnam. Submitted documents, including his passport, 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.
Background
The applicant was born in Hai Phong, Vietnam on [date]. He was educated to Year [number] level in Vietnam before travelling to Australia on a [temporary] visa, arriving [in] August 2011. That visa ceased [in] November 2011. He lodged this Protection (Class XA) visa [in] November 2013.
The delegate’s decision records that the applicant’s sister first came to Australia in 2010 on a [temporary] visa which was cancelled [in] April 2012. The applicant had been at his sister’s premises when they were visited by Departmental officers in March 2012 and he was placed on a bridging visa. This visa ceased [in] April 2012 after which the applicant was unlawful until he approached the Department in December 2012, unsuccessfully seeking Ministerial intervention in February 2013.
The delegate discussed the applicant’s claims regarding his having lost contact with his parents, and his fears of returning to Vietnam because of his loss of household registration, the loan sharks, to whom his parents allegedly owed money, and his treatment because of his conversion to Christianity. The delegate accepted that his family had become bankrupt and their house repossessed, that his mother was ill and unable to care for him and that he had become a Christian since his arrival in Australia. Conversely, while accepting that he held fears for his financial security, the delegate did not accept that had lost contact with his family network in Vietnam or that there was no-one to look after him. He also did not accept that the applicant was at any risk from loan sharks.
While accepting the applicant’s conversion to Protestantism and that he may feel compelled to proselytise, the delegate considered this was not of itself sufficient to attract adverse attention in Vietnam amounting to persecution. In addition the delegate as not satisfied that the applicant‘s profile was such that it indicated he would undertake political activities which would bring him to the attention of the state, with the possible exception of imputed political opinion on the basis of his having become Christian in a western country. The delegate accepted he had a subjective fear but it was not one supported by objective evidence. In relation to his membership of a particular social group, that is, that of an impoverished child [with no means of subsistence], the delegate was not satisfied this fear was well-founded. Furthermore, in relation to complementary protection, she did not consider his fear to be unable to subsist in Vietnam amounted to significant harm. Consequently the visa was refused.
Prehearing submissions
It was claimed that the applicant was a person to whom Australia owes protection obligations on the following grounds:
ØReligion
ØActual and/or imputed political opinion
ØMembership of one or more particular social groups being:
oPeople who have borrowed money from and cannot repay loan sharks and people who have fallen foul of the Vietnamese mafia
oPeople who are returned to Vietnam as failed asylum seekers
oPeople who are opposed to or are avoiding military service
oPeople who cannot be registered with the Vietnamese authorities household register
ØDenial of capacity to subsist
The submission noted the delegate’s findings as to the applicant’s credibility but also noted that he was only [age] at the time and had answered questions to the best of his ability, at no time heightening or exaggerating those claims. Various submissions were made regarding the visits of the Vietnamese police to the detention centre and release of the applicant’s information however the representative conceded at the hearing that this part of the submission was in error.
The submission noted that the delegate accepted that the applicant was a Christian, and relied on various country information that indicated members of unregistered religious groups suffer harassment and there are tight state controls on religious minorities. The applicant’s fear that he will be prevented from worshipping if he is forced to return is contended as serious and significant. Further, it was asserted that country information confirmed the situation for Christians in Vietnam is getting worse and he would face a real risk of serious harm on this basis should he be returned.
In relation the claims that loan sharks, from whom his parents had borrowed money, were looking for him, it was submitted that people who “owe money to loan sharks are prima facie owed protection under the Convention.” In the alternative, such people are publicly targeted because of membership of this group to send a message to other debt defaulters. It was also claimed that the activity of the Vietnamese mafia in seeking to enforce loans against family members is well-known and that a lack of police support and high levels of corruption supported by credible country information means applicant’s fears in this regard are well-founded. That is, such is the level of corruption, there is a real risk he will be located by gangs and severe harm will be intentionally inflicted to punish him for failing to repay the debt or to intimidate him into repaying it. Alternatively, relying on AAT decisions 1318565 and 1216433, it was submitted that there was a real chance he would experience significant harm. The tribunal has considered those (differently constituted) tribunal decisions and considers them both distinguishable for several reasons, mainly because in both those applications the relevant harm had been demonstrated to have occurred.
In relation to his fears of return to Vietnam as a failed asylum seeker, the submission relied on several media reports of people charged with offences on their return to Vietnam. It contended that it cannot be argued as remote that that the applicant would be detained and may be charged with an offence if returned.
In this context the tribunal notes that the persons arrested were alleged to have been the people smugglers who had left the country illegally. The applicant left the country legally.
It was also claimed that the applicant will be viewed as having provided evidence to the Australian authorities, which would be viewed as opposing the Vietnamese government and places him at incredibly high risk of being detained by Vietnamese police and possibly even being incarcerated. In addition it was further claimed that the act of applying for asylum could be regarded as an act of political dissent and will result in his incarceration and risk of greater harm.
In relation to military service, it was claimed that the applicant continues to fear harm because he does not want to undertake military service.
It was also submitted that his extended absence from Vietnam, status as a returned asylum seeker, religion and imputed political opinion will mean he has trouble obtaining household registration and consequently he would be denied access to services and this denial of access to basic social services would constitute persecution.
A statutory declaration from the applicant was also received as was confirmation of his current theological studies.
The hearing
The tribunal asked the applicant about his family and he advised that his mother has [number] siblings in Vietnam and his father has [number] siblings, also in Vietnam. He claimed that he only had contact with his mother’s [sibling], [name], because the rest of the family had rejected his mother and father. He said he was living with his parents before he came to Australia. He said his sister was his only family in Australia but he has no idea of her whereabouts. He said he last had contact with her in August 2016 and does not have her telephone number. He said she had called him on a private number. When asked why he had not asked for his sister’s telephone number he responded that she did not want to discuss it.
He confirmed that he arrived in Australia [in] August 2011 on a [temporary] visa, at [age], and had planned to attend an English course. He maintained that he had intended to return to Vietnam. He said when he arrived his sister was to take care of him but he saw that she was pregnant and he became angry. He claimed because of this he had run away. When asked to explain further, he said he left his sister’s house one day after he arrived and went to the English school, met some other Vietnamese youths who became his friends and who provided food and accommodation for him. He claimed he attempted to call his parents but no-one picked up the phone. He said his sister had looked for him but could not find him and they were not in touch for a long time. The tribunal queried his evidence that he left his sister without telling her of his departure, and that she would have been worried. It asked why he had not contacted her. He responded that he was so young and angry and was not thinking as an adult. He said he did not attempt to contact his parents again until he and his sister reconnected. The tribunal queried his failure to contact his parents in circumstances where he had no financial support. He again claimed that he did not think of calling them. Tribunal noted that it found this difficult believe. He said he understood why it was difficult to believe but maintained that he could not think of anything at the time and did not think to call them. The tribunal asked if he was homesick or missed his parents. He said he did but reiterated that he could not think of anything and did not think to call or know how to call. The tribunal commented that it did not accept that he did not know how to connect with his family. It observed that his visa had expired and he had no family support and asked him why he did not get in touch with the Department. He claimed that until he was detained he did not know he could do so.

He claimed that he encountered his sister in late 2011 at the market and went to live with her for about two or three months until they were visited by the Department. He said they found his visa had expired and he was granted a Bridging Visa. He acknowledged that he had provided false information to the Department about what had happened to him but claimed his sister had told him to give that information. He did not know the reasons. He claimed not to know what had happened between his sister and the Department but that the Department told him he had to leave the country. After that his sister went with her partner to a new residence but he was not allowed to go with them. When asked why he did not return to Vietnam, he said he went to a church that he had previously passed by and sat in the church and met a person who helped him. He claimed that person was a priest called ‘[name]’ and he arranged for his accommodation at various homes. He did not remember the addresses. He said he did small tasks for the families in return for his food and board. He acknowledged that he had not contacted the Department in the period following the expiry of his Bridging visa until he was given tickets to depart, by the church, in November 2012. The tribunal again asked him about his contact with his parents, from the end of 2011 until November 2012. He said he did contact them again but he could not remember when. He said the conversation was about his circumstances in Australia and his parents were worried and said they would bring him back to Vietnam. When asked what happened after this, the applicant said his ticket had been booked but he had no further contact with them and did not know what happened to them. He could not remember when he next tried to contact them. The tribunal asked why he had not departed Australia. He claimed he had tried to contact his parents but there was no signal. The tribunal noted the differing versions in his statement. That is, that he had rung his mother and his [relative] had answered the phone and, alternatively, that his [relative] had called him. The tribunal asked him what happened. He claimed he had tried to call his mother and his [relative] had picked up the phone and told him his father was missing and his mum had a mental illness. The tribunal had to prompt him to recall any further conversation. He said she also told him a debtor had come to his house to ask for money and that his [relative] said she was looking for his mother. The tribunal asked why he did not return home. He claimed that his [relative] said the people were also looking for him and trying to find him to pay the debt. The tribunal observed that at this point in time he was only [age] and clearly would have been unable to repay any debt and asked why they would be interested in him. He claimed that his [relative] told him they said they would take him hostage to get the money back.
The tribunal asked why the applicant could not return to Vietnam. He said that God had saved him, that people in Vietnam were looking for him and the state considers him an enemy. The tribunal asked why anyone in Vietnam would be looking for him. He responded that the government in Vietnam is non-religious and he believed that if he returned they would try everything to harm him. The tribunal asked the applicant the basis for his belief. He maintained that priests in Vietnam are under government control and if he returns, because he has been trained in Australia, they will consider him an enemy. He claimed that they want people to be fearful of them and consider that people who honour God do not respect the government.
The tribunal read out country information from the DFAT report of August 2015 and USCIRF 2016 report which indicated that the generally the Protestant church was a registered church and persons who practised this religion were not hindered or harassed in the practice of their faith[1]. It also noted the positive developments stated in the USCIRF report[2]. The applicant replied that priests and pastors are under Vietnamese government control because the government understands the influence of religion. He maintained that because he studied overseas and will tell the truth about the government and the good things about God they will suppress him. The tribunal observed that telling the truth was not necessarily anti-government. He maintained that if he tells the truth the Government will be fearful of people like him. After several attempts to elicit on what evidence or information he based this belief, he said it was in the media and Vietnamese pastors had come to Australia and he had attended a meeting where they were told that if you tell the truth in Vietnam you will be kept in custody. He maintained that the Vietnamese government was fearful of people like him who stand up and tell the truth. When asked what he meant by the truth, he responded that he will be detained because he will tell the truth about the corruption of the Vietnamese government is corrupt and how it covers up its wrongdoings.
[1] DFAT Country Information report – Vietnam – 31 August 2015 at paragraph 3.19.
[2] United States Commission on International Religious Freedom, 2016 Report, Vietnam.
The tribunal observed that the applicant’s claims about what will happen to him were speculative. He rejected this, stating that he had evidence that a pastor had been detained in prison. He said the purpose of his study was to become a Christian leader so he would be subject to the same harm. The tribunal allowed him some time to provide further evidence in support of his claims in this regard from the pastors to whom he had referred.
The tribunal asked the applicant whether he had taken this path in order to strengthen his protection claims. He denied this, maintaining that he wanted to be a religious leader because God had saved his life and he had devoted his life to God and to saving people. In responding to the comments in the USCIRF report he claimed that the Vietnamese government wanted to portray ‘a good face’ to others.
The tribunal then addressed the applicant’s claims to be pursued by loan sharks. It asked what he knew about the debt and how he knew about it. He said his [relative] had told him that they still call her house and are still looking for him. He said the debt is around [amount] and is rising with a high interest rate. The tribunal noted that although he claimed that his [relative] had told him the debt collectors would take him hostage if he returned, she apparently had not disclosed this in her correspondence following their phone call. She had only said her parent’s had a debt and his father had fled and his mother was ill. The tribunal told the applicant that it had considerable concerns with the credibility of his claims in this regard. It stated that the early information related to his claim referred to his parents’ bankruptcy and that this could have occurred through a legitimate debt. The applicant then claimed that apart from the loan, his mother and father also had sought money on the black market. They told his [relative] this and she passed it to him. The tribunal noted his claim that he last spoke to [his relative] 6 months ago so how could he know the loan sharks were apparently still looking for him. He maintained that as long as they are owed money they will seek to pursue it. He did not know the names of anyone pursuing the debt and said no complaint had been made to the police by his [relative] because the debt did not belong to her. He further claimed the police would not take any notice because they have connections to the criminals. The tribunal noted the length of time since his departure and queried why he thought they would still be pursuing the debt. He responded that it was a big amount of money and the only person it can be recouped from is him and that he fears they will harm him. The tribunal told the applicant that it accepted his parents may have had financial difficulties and may have not wanted him to return because of their financial constraints, however it found his claims in this regard particularly incredible. He said he appreciated that it was hard to believe but he was scared of them but more scared of Vietnamese government because he will be unable to tell the good things about God.
The tribunal the asked the applicant to explain his claims regarding military service, noting that this law was one that applied generally to the population and tribunal could not see its discriminatory effect. He said that he must be a non-religious person to serve the government in this way and he would have no chance to know God. He said he belongs to God and it would be hard for him to serve the government and belong to God.
The tribunal also asked him to clarify his claims in relation to his fear of harm on basis of imputed political opinion. He responded that because he is a religious activist, that religion is close to politics and people who follow God are beyond the government’s control
When the hearing was adjourned and rescheduled the tribunal returned to the applicant’s claim of actual or imputed political opinion and his statement, as the tribunal understood it, that, if he was returned to Vietnam he would be regarded as a political activist because of his faith. The Tribunal put country information to the applicant that indicated the applicant would be able to freely practise his faith, even be a leader, without attracting adverse attention from the authorities. [3]
[3] DFAT Report paragraph 3.19
He claimed that those churches which do operate freely are those which are 100% under government supervision and do whatever the government tells them to do. He maintained that people like him, who have studied human rights and religion outside the country and are not within/under government control, are considered the enemy on return. The tribunal asked him on what basis he made these assertions. He responded that he is a religious leader and if he goes back to Vietnam and tells people about God it will be against the government’s ‘way’ as it will affect the interests of the government. He gave the example of the Formosa protests. He claimed that innocent people had just wanted to sue the company for the damage it caused but the government stopped them and persecuted them. The tribunal observed these claims were economic, not religious. He maintained that they were all people of faith and ‘the government does not want that.’ He drew the Tribunal’s attention to an article he provided about Dang Xuan Dieu. He contended that it was an example of a person being persecuted on his return to Vietnam for his faith. The tribunal observed that the person in the article was outspoken, was a journalist and acknowledged democracy advocate and wrote a blog. He frequently spoke out against government and was not someone who quietly practised his religion. The applicant responded that he was a person who practices his faith in God and did nothing other than gathering together those of similar faith, which meant he was against the government. The tribunal asked the applicant about his claims and queried if he was claiming he would be persecuted because he had studied in the West and returned to Vietnam. He agreed, stating that because he has learned in Australia to be a leader, his job if he is returned will be contrary to the interests of the government. He claimed the Vietnamese government does not like trained people. The tribunal queried his response, asking him ‘what job’ and if he meant that he planned to act against the law. He maintained that he would respect the laws and regulations of Vietnam but that when he works as a missionary and leader of his faith, people will understand that they are entitled to freedom and the government will not like this. He claimed that as a leader his treatment would be worse and referred to the article he supplied. The tribunal asked him if he was saying that he would be politically active if he returned to Vietnam. He responded that religion will affect political opinion, even if he returned and just delivered religious training the government will still regard him as a political activist because it will think he wants to go against it. He maintained that in Vietnam there is no freedom for religious people, that they are not allowed to open bank accounts and the government confiscates their land.
The tribunal turned to the applicant’s other claims. It referred to the country information from DFAT that assessed there is no difficulty for returnees to re-register for the Ho Khao [4] The tribunal asked if he had any particular fear of harm on the basis of his lack of household registration. He said he did not fear harm on this basis. He said he could live anywhere as long as the government allows freedom of belief in God. He said he was ready to die for God and did not want to die a useless death.
[4] DFAT Report paragraph 5.30
The tribunal then addressed his claims to fear harm as a returned asylum seeker. It referred again to the DFAT report [5], noting that the applicant had left Vietnam legally and on his own passport . It further noted that, given his absence, he may be detained for a short period and questioned however on the basis of this information the tribunal may not accept that he faced a real chance of serious harm for any of 5 reasons mentioned at start of hearing or significant harm as defined. It said there was nothing in the information before it which suggested that he would be charged or harmed because he returned as a failed asylum seeker. He responded that the government is too scared to do anything to high profile asylum seekers however for other individuals, no-one knows what happens to them, and they might be killed.
[5] DFAT Report paragraphs 5.21 and 5.28
The tribunal commented that overall, that the information and evidence before it, it may lead it to conclude that the applicant ‘s risk of harm on return to Vietnam as a Christian, on basis of actual or imputed political opinion or as failed asylum seeker or membership of social group or any other claim, however characterised, is remote and asked for his response.
The applicant responded that as an individual he just wants to practice his religion and help others. He said he was not afraid of dying but he did not want to die without having done anything for God. If God wants him to go back to Vietnam even if he is killed he will be happy because he has followed God. He reiterated that he did not want to die a useless death without doing anything for God’s sake.
The tribunal then spoke to the applicant’s witness, his former guardian and a fellow member of the Church. He told the tribunal that a member of the church had discovered the applicant about three years ago, living without parents, and the Uniting Church had taken him in. He had met the applicant when the Church assigned him as the applicant’s guardian. He said his understanding was that his parents’ had sent him to Australia as a student when they went bankrupt. He said he had not spoken to his parents but had spoken once to his [relative] about 3 years ago. She had told him that that his parents had sent him to Australia because they were bankrupt, that they had relationship problems and were divorced and his mother suffered mental health issues. He said he asked her if anyone could take care of him because the Church had bought him a ticket to go back to Vietnam but the [relative] had said she was very worried because his parents’ creditors had been looking for him and if he went back they would take him hostage. The tribunal queried this claim and the witness responded that it was normal in business in Vietnam. The tribunal observed that it appeared he was aware that the applicant’s immigration status had been unlawful and asked if he or the Church had gone to the Department with him to seek to regularise his status. He said he was busy working and it was too long ago and he could not remember. He recalled going to the Red Cross. When asked about the applicant’s sister he said he had met her once but she was living in Australia illegally and therefore he has no contact with her.
The tribunal asked the witness if he knew why this application had been made. He responded that he knew Australia offered humanitarian visas and because of the applicant’s situation in Vietnam and his belief in God, he would readily die for his faith. When asked what he knew of Vietnam, he said in general those who belong to a Christian church will be persecuted. When asked how he formed this belief, he said he had contacts with friends in Vietnam who were religious leaders, and also through the newspaper and internet. The tribunal asked him about his friends in Vietnam and he referred to the article that was supplied by the applicant. He said this man is a very devoted Catholic leader and was a parish priest in Hanoi who protects those who are suppressed and tells the truth about the government’s treatment of these religious members. When asked if he thought the applicant would be subjected to harm if he returned to Vietnam, the witness referred again to the person in the article and claimed that the applicant was in the same situation as him. The tribunal observed that the man in article was an activist and the only correspondence between his situation and the applicant’s was that they both have studied overseas. When asked if he wished to add anything further, the witness said he had seen the development and growth of the applicant’s religious practice in Australia, that he conducts a lot of charitable work in Australia and he should be allowed to remain until he can return and freely practice his religion.
The Tribunal allowed a further two weeks for any further submissions.
The tribunal received another submission which repeated the prior submissions and also asked the tribunal to contact a pastor [name] regarding the adverse treatment of religious groups by the Vietnamese government. In the absence of a more detailed submission as to the status of Pastor [name] and the information that he could purportedly provide, and, more particularly, any ability for the tribunal to authoritatively identify the person at the other end of the telephone, the tribunal did not consider there was an utility in placing the call. It was and remained open for the applicant to provide a translated statement in this regard.
The submission also referred to prison conditions and detention centres in Vietnam, and the claimed reference by the tribunal that the applicant might be detained for a short period of time on his return, contending that even a short period of detention would meet the threshold of serious/significant harm.
Assessment of claims
Loan sharks
Tribunal notes applicant left Vietnam at the age of [age] and has not resided there for over 5 years. To a large extent the applicant has made these claims on the basis of what he has been told, there is no indication that he has direct knowledge of his family’s purported debt and the persons alleged to be seeking its repayment. In addition the claims in this regard have significantly escalated since the commencement of the protection application process. The lack of reliable, objective evidential support of any kind, other than the applicant and witness recall of what his [relative] has said, lead the tribunal to conclude these claims are not credible.
On this basis, the tribunal considers these claims are fanciful and far-fetched and does not accept that the applicant’s claimed fear in this regard is well-founded.
Christian conversion
The tribunal was initially concerned about the credibility of the applicant’s claims to have genuinely converted to Christianity, given the timing of his claimed conversion (only after coming to Australia) however his evidence was convincing and, for the following reasons, the tribunal accepts that he has genuinely converted to Christianity:
·The applicant’s claims were supported by oral evidence from a witness, his guardian, [name]. His evidence was consistent with that of the applicant in relation to his engagement with the church and his devotion to his faith. He also supported the applicant’s claims as to his likely treatment should he return to Vietnam as a Christian proselytiser.
·Correspondence from the pastor at the Uniting Church which the applicant attends confirming his faith and his practice of it.
·Correspondence from the director of [a] Theological College confirming the applicant’s ongoing studies.
·At hearing, the applicant was extensively questioned about his reasons for converting to Christianity and his level of knowledge of the faith and he provided reasonably detailed reasons and answers. In particular, the tribunal noted that the applicant demonstrated a significant degree of zeal for his religion and a convincing commitment to spread his faith and advocate for religious freedom and human rights as a missionary for the church.

For these reasons, the tribunal accepts that the applicant has genuinely converted, it follows that his conduct in Australia was not engaged in solely to strengthen his refugee claims and that this conduct must not be disregarded under s.5J(6) of the Act.
COUNTRY INFORMATION
Religion/Imputed Political opinion
Information from the Department of Foreign Affairs and Trade provides the following information regarding religious practice in Vietnam.
Article 24 of the Constitution allows citizens to enjoy freedom of belief and religion, and to follow any religion or none. It also states that all religions are equal before the law, and that no one may ‘misuse beliefs and religions to contravene the law and State policies’. The Penal Code 1999 includes penalties for offences such as ‘Undermining the unity policy … [through promoting] division between religious believers and nonbelievers’.
The government implements a registration process for religious organisations, with an approval process managed by the Committee on Religious Affairs (CRA). Under the government’s ‘Decree 92’ of January 2013, religious organisations may be registered if they can demonstrate that they have operated for 20 years within Vietnam without violation of Vietnamese law. They are also required to commit to upholding government regulations and to ensure their activities support the ability of the state to maintain public order. There are 38 registered religious organisations affiliated with 13 officially recognised religions, including Buddhism, Christianity, Islam, Judaism, Cao Dai, and Hoa Hao. Registered clergy may conduct religious education in approved religious facilities. Most recognised religions in Vietnam also have one or more groups that are not recognised or registered.
The government maintains a dedicated police force for monitoring the activities and networks of religious organisations in Vietnam. The force is responsible to the Ministry of Public Security and sets and administers policies for the enforcement of state law against non-registered religious groups who are perceived by the Government of Vietnam to threaten national stability.
In practice, the authorities’ treatment of religious activity varies across Vietnam, particularly for unregistered organisations. Groups that are under surveillance for alleged separatist activities may find administrators more likely to apply more stringent measures, including surveillance and harassment of public religious gatherings.
Broadly speaking, DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam—which can be broadly defined and include land use issues—religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. There may, however, be restrictions on some activities and the freedom of individuals to travel outside of Vietnam to attend religious festivals and events. There are credible reports of restrictions on the activities of some unregistered groups, including allegations of violence and harassment. DFAT is not aware of credible claims of societal abuse or systemic discrimination based on religious practices. Authorities are, however, concerned about the potential for religious groups to be mobilised for political purposes.
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. These groups can include those with an anti-government agenda that organise large numbers of people in public spaces or promote civil activism. While it is difficult to obtain accurate information on exact numbers, there is credible evidence of dozens of people serving prison sentences for political-religious activities. DFAT assesses that individuals who participate in unregistered religious organisations which are perceived by the state as being opposed to government policy are highly likely to be monitored, harassed, arrested, detained or prosecuted by authorities.[6]
[6] DFAT Country Information Report, Vietnam, 31 August 2015.
Information from the United States Department of State (USDOS) is consistent with the information from DFAT. The United States Commission on International Religious Freedom Report for 2017 states the following in respect of Vietnam:
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 freedom. There is a disconnect between the central government’s overtures to improve religious freedom conditions and the ongoing actions taken by local officials, public security, and organized thugs to threaten and physically harm religious followers and their houses of worship or other religious property.
In general, the Vietnamese government continues to crack down on anyone challenging its authority, including lawyers, bloggers, activists, civil society, and religious organizations.
….
Also, in 2016, an environmental disaster resulted in extensive fish and marine life die-offs and undue hardship on local fisherman and residents in affected areas in central Vietnam. As the government arrested peaceful demonstrators who were angered by the government’s lack of transparency about the catastrophe, many local religious organizations provided support and resources to those impacted by the disaster and were harassed by the authorities for trying to help the demonstrators.
…
The Vietnamese government regularly targets certain individuals and groups because of their faith, ethnicity, advocacy for democracy, human rights, or religious freedom, historic ties to the West, or desire to remain independent of Communist government control.
The United Kingdom Home Office, in its Country Information and Guidance report on Vietnam issued in December 2014, provides the following summary of its findings.
Vietnam actively suppresses political dissent and the authorities arbitrarily arrest and detain people, including family members, involved with opposition political parties or who express views which they believe pose a threat to the state.
This includes including bloggers, political and religious activists, land and labour rights activists, human rights and social justice advocates.
Persons who have come to the attention of the Vietnamese authorities for actual or perceived involvement in political opposition to the regime are likely to face ill treatment amounting to persecution in Vietnam. In such circumstances, a grant of asylum is likely to be appropriate.[7]
[7] UK Home Office, Country Information and Guidance, Vietnam: Opposition to the Government, December 2014.
The tribunal considers the above information to be authoritative and attributes significant weight to it.
The applicant’s evidence clearly demonstrated that he considers it his duty to spread the word of God and promote freedom and human rights and the tribunal accepts his claims in this regard as genuine and credible. Given that he is a member of the Uniting Church, which, although Protestant, does not appear to be registered in Vietnam, the tribunal considers it is highly likely that he will be regarded by the authorities as an activist member of an unregistered religious organisation. The applicant states that he does not support the Vietnamese government, he considers it corrupt. The tribunal accepts that the applicant may hold these views and will express them if he returns to Vietnam and accepts this may cause him problems in Vietnam.
Having regard to the country information indicating the approach adopted by Vietnamese authorities against those who it perceives are critical of the regime or the authorities, the tribunal accepts that there is a real chance that the applicant has been identified as a potential opponent and that he thereby faces a real and not remote chance that he will targeted for harassment and otherwise adverse attention which may lead to 'serious harm', now or in the reasonably foreseeable future if he returns to Vietnam.
The tribunal considered whether the applicant might be able to internally relocate within Vietnam in his circumstances. Having regard to the country information and the system of household registry, in Vietnam, the tribunal finds that the applicant would have to register his name with the police in whatever new location he might choose to relocate. As the Tribunal finds the agents of persecution in this case are the Vietnamese authorities themselves, it is not satisfied that the applicant would be able to relocate to a place in Vietnam where there is not an appreciable risk of being identified and targeted for harm.
Further, the tribunal finds it would not be reasonable for the applicant to avoid registering his address, even if it were possible to do so, as the absence of household registration is necessary for many aspects of life which are necessary for a reasonable life, such as the exercise of political and economic rights, the right to vote, access to education, to obtain a birth certificate, public health care, amongst other things. The tribunal also notes that the DFAT states that the strong and effective Vietnamese state means that there are few options for internal relocation to seek protection from state authorities[8].
[8] DFAT Report, paragraph 5.20,
For these reasons, and in the circumstances of this case, the tribunal finds that it is not safe or reasonable to expect the applicant to relocate internally within Vietnam and that the real chance of persecution relates to all areas: s.5J(1)(c).
The Tribunal also finds, by reference to relevant country information, the applicant does not have access to adequate and effective State protection in the circumstances of his case because it is the authorities from whom the harm is feared. Given this authoritative information, the Tribunal finds the applicant does not have effective protection measures available to him in Vietnam: s.5J(2).
Having considered the country information and the totality of the applicant's circumstances, as a Christian belonging to the Uniting Church who, the tribunal accepts, is genuine in his intention to work as a missionary and proselytize, the tribunal finds there is a real chance that in the reasonably foreseeable future he would be persecuted for reasons of religion and imputed political opinion if he was to return to Vietnam. Further, as it finds the applicant does not have the option of internal relocation, and is unable to avail himself of state protection, it finds his fear of persecution for one or more of the Convention grounds is well founded as required by s.5J of the Act. Therefore he is a refugee within the meaning of s.5H.
There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.
For the reasons given above, the Tribunal is 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).
Given these findings, I have not addressed the applicant’s other claims.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Mary-Ann Cooper
Member

[2017] AATA 1195

29 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice