1506146 (Refugee)

[2017] AATA 2148

1506146 (Refugee) [2017] AATA 2148 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506146

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Melissa McAdam

DATE:17 August 2017

PLACE OF DECISION:  Sydney

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 17 August 2017 at 2:13pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Religion – Practicing Catholic – Political opinion – Association with Viet tan party – Fear of harm of local authorities – Impact of footage

LEGISLATION
Migration Act 1958, ss 5, 36, 45AA, 65, 91R, 91S, 424AA, 499
Migration Regulations 1994, Schedule 2 r 2.08F

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] April 2015.

3. 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.

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

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

8. 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.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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.

    SUMMARY OF CLAIMS AND EVIDENCE

    Protection visa application

20. The following is a summary of the claims and information provided by the applicant in his Protection visa application:

    a.The applicant was born [in date] in [Village 1], Nghi Loc District, in Nghe An province in Vietnam.

    b.He has a wife, son and daughter who are living in [Village 1].  His mother [and siblings] are also living in [Village 1]. His father is deceased.

    c.He is of Kinh ethnicity and Catholic religion. 

    d.He had approximately [number of] years of school education in Vietnam, from [year to year]. He obtained his [grade] qualification.

    e.He worked [in] [Country 1] between January 2008 and June 2009. He worked as [Occupation 1] for various employers in Nghe An province between June 2009 and March 2011. Between March 2011 and August 2012 he did seasonal [work] in [Country 2]. He was detained in [Country 2] between August 2012 and December 2012. He travelled to [Country 1] for up to a month at a time on several occasions for work purposes.

    f.He lived in [Country 2] between March 2011 and December 2012. He was deported from [Country 2] [in] November [sic] 2012. 

    g.His troubles in Vietnam began when his [sister] had [children] with a disability. Her husband was an [occupation] and it was believed the children’s disability was caused by the exposure of her husband to [a certain environment].  [Details of children’s disabilities].

    h.The applicant’s family provided his sister with a small plot of land to build a house. In August 2008 the Vietnamese authorities forcibly acquired the land and demolished her house.

    i.The applicant and his sister and other people from the area tried to prevent the authorities demolishing the house. They struggled with the authorities and [police] were injured.

    j.The applicant and his sister were arrested and taken to the police station. They were detained for 24 hours and questioned about the incident. The police believed they had injured the [police] officers. They were released even though the police did not believe they were not responsible for the attack. The police continued to summons them to the police station and treat them harshly to try to force them to tell the police who had injured the police officers. They would stop and question the applicant regularly.

    k.This made it difficult for the applicant to subsist. One day when he was returning home from school he was attacked and badly injured by the authorities. His family were very concerned and made arrangements for the applicant to travel to [Country 1]. The applicant travelled back and forth between [Country 1] and Vietnam because he did not have the right to stay in [Country 1].

    l.In June 2009 the applicant returned to his home for his brother’s wedding. A friend told him the authorities planned to target him at the wedding. The applicant fled to Lam [Dong] and tried to keep a low profile but the police discovered he was there. One day while he walking in the street he was attacked by thugs sent by the police. His lip was cut and needed stitches.

    m.In July 2012 the applicant travelled to [District 1] to visit a Catholic friend. The friend told the applicant the Catholic community were experiencing many issues and that it was important for Catholics to come together to worship and pray. While he was in [District 1] he attended a worship service with his friend. The authorities attacked with tanks and troops and threatened to harm them. The applicant escaped but felt he was being followed back to Lam Dong. He was concerned he would face issue with the authorities because he had previously assisted his local [church] group and had been warned to stop his association with the church. So he went to [Village 2] where he had relatives. They assisted the applicant to avoid the authorities who were following him.

    n.The applicant returned to Lam Dong rural area in order to avoid the authorities. He met and married his wife there.  After their marriage his wife returned to his village to obtain a marriage certificate for them. She had to pay a bribe to obtain the marriage certificate because of the applicant’s issues with the authorities. When she was obtaining the certificate the authorities recognised the applicant’s name and asked about his whereabouts.  Because they knew where the applicant’s wife originated from they were able to find the applicant. His wife’s parents were worried so arranged for the applicant to go to [Country 2].

    o.The applicant went to [Country 2] and worked there. His visa expired and he was detained and returned to Vietnam.

    p.When he returned to Vietnam the applicant was detained for one month. He was tortured and interrogated about his travel document and why he was in [Country 2]. He was electrocuted and beaten with plastic rods.

    q.His family in [Country 2] advised his family in Vietnam he had been deported and one of his uncles who worked for the authorities located where the applicant was. He paid bribes for the applicant’s release.

    r.Four days after the applicant returned to his village he was approached by the local authorities and summoned to attend the police station. He was interrogated about his trip to [Country 2]. He was accused of tarnishing Vietnam’s reputation.  A court case about the 2006 [sic] incident was opened against the applicant. He was beaten.

    s.His family arranged for the applicant to go again to [Country 1]. He went there [assisted] by a smuggler.

    t.He returned briefly to Ho Chi Minh city and then fled Vietnam. He paid bribes to obtain his passport. He departed Vietnam [in] March 2013 and arrived in Australia [in] April 2013.

    u.His family are still being questioned by the authorities.

    v.He was considered a political dissident in Vietnam. He fears being targeted on return because of this and because of his faith.

    Departmental Interview, 15 October 2014

21. The following is a summary of the claims and information provided by the applicant in his Departmental Interview:

    a.The applicant is from [Village 1] in Nghe An Province. He married his wife [in] November 2010. He has [siblings]. Some live in Lam Dong province in the south and some live in Nghe An province. His wife and children live in Nghe An in [Village 1].

    b.The applicant is in contact with his family in Vietnam about once a week.  The authorities are looking for him. The last time they looked for him was in December 2012 when he was deported from [Country 2]. The most recent time they looked for him was around February 2013.

    c.The applicant has lived in [Country 1], [Country 3] and [Country 2]. He first went to [Country 1] in January 2008.  He would stay in [Country 1] for two or three months then return to his parents’ place in Vietnam. In June 2009 he left [Country 1] and returned to Vietnam. 

    d.He went to [Country 2] when his in-laws helped him get a visa. He worked in [Country 2]. He went there by plane from Hanoi airport [in] March 2011. He lived in [Country 2].  He knows just a few [Country 2] words. He returned to Vietnam from [Country 2] [in] December 2012.

    e.He did not mention his travel to [Country 2] during his Entry Interview because he did not think of it.

    f.He went to [Country 1] in January 2010 and again in August 2010 to avoid the authorities in Vietnam, because they were checking on him and they got people to hit and beat him. The last time he went to [Country 1] was in March 2013, because he could not settle in Vietnam after he returned there from [Country 2]. He stayed in [Country 1] for ten days.

    g.He departed Vietnam on his journey to Australia on his own genuine passport.

    h.He finished his studies in 2007. In 2008 he worked in [Country 1]. He worked in Vietnam in Lam [Dong]. He did not work in [Village 1].

    i.After he married he went to [Country 2] to work and send money home. After he returned from [Country 2] in December 2012 he did not work.  He worked as a [Occupation 1] until he left for Australia.

    j.He is seeking protection in Australia because of his religion and because of the property problem in Vietnam.

    k.He was born Catholic and has had his first Communion. 

    l.He was first arrested and tortured by the authorities in August 2006 over his sister’s property. He was still going to school then.

    m.His sister has [disabled] children.  The authorities tried to stop her building a house because she did not have permission to build the house. The family had asked for permission but it was refused. They did not know why it was refused.

    n.The authorities destroyed the house. When the authorities came there was an argument and fighting and [police] got hurt. The applicant was involved in the fight. There were police and people present.  He doesn’t remember how many police. The village is divided into four groups. All the four groups had come but only he and his sister were arrested. He doesn’t know how many people live in his village.  In his church there are four groups of people. The church is very crowded.  The four groups are from a particular area. All the people in the village are Catholic and belong to the Catholic church. The applicant’s [sister] was the one arrested. They were the only two arrested because they were the ones who tried to stop the authorities.

    o.After they were arrested they were taken to the police station by motorbike.  At the police station the applicant was beaten. The police did not speak to him, they just beat him with a big stick.  His sister was not beaten. They were at the police station for 24 hours. They were kept there to try to find out who was involved in the fight and who had hit the police officers.

    p.The applicant was one of the people who had beaten the police officer but he did not admit it.  His sister was also released after one day.  After they were released the applicant asked his sister what the police had asked her.  She told him it was questions about who hit the police officers.  She told them she did not know.

    q.After their release the applicant was not allowed to go anywhere.  If he tried to go to school they hired someone to beat him on the way.  The applicant was beaten on the way to school. His friend told him the authorities found someone to hit the applicant. The person who hit him was not from his village. The applicant does not know how many times he was attacked going to school. It would happen one week and then again the next week.

    r.The applicant was arrested a few times in Vietnam because of the same incident.  The authorities were keeping an eye on him and checking on him. They wanted to find out the person who hit the officer.  This continued until the applicant came to Australia.

    s.The authorities also tried to stop the villagers from practicing their religion. They tried to stop the applicant on his way to church and to make excuses and difficulties to prevent him going to church.  This happened many times.  The most recent time was ten days after he came back from [Country 2], in December 2012. After he returned from [Country 2] he lived in [Village 1].

    t.There are no other incidents that made him come to Australia. The only incident was the arrest in 2008 which led to him being followed and beaten a number of times.

    u.He departed Vietnam from Saigon. He went to Saigon from [Village 1].

    v.He met his wife in Lam Dong. After his marriage in 2010 he still had problems with the authorities who kept following him and making his life difficult.  When he went out or did anything, he would be attacked. He was scared for his life. He was attacked on his way to his wife’s village. On his way to church they also tried to attack him.  This happened many times when he lived in his village.  He was also followed by the authorities in Lam Dong. They don’t care about the resources it takes. His sister was not followed but they did not give her permission to build her house.

    w.The applicant was in Lam Dong to get away from the authorities and their pressure. He had no problem leaving [Village 1] but the authorities followed him and caused him problems in Lam Dong. He was attacked in Lam Dong two or three times. After he married he and his wife went back to his home town. He tried to live in [Village 1] but could not because the authorities made things difficult for him so his wife’s family organised for him to go to [Country 2]. 

    x.The applicant did not apply for asylum in [Country 2] because he did not know he could.

    y.Ten days after he returned from [Country 2] in December 2012 the authorities started stopping him when he went out.  They summoned him to their office and told him he could not go anywhere. They were trying to control his movements.

    z.The Delegate put to the applicant that he had written in his Protection visa application statement that after he returned from [Country 2] he had been put in jail for one month and tortured. He responded yes when he arrived in Hanoi he was arrested and jailed for one month. His family bribed the authorities for his release. He was jailed for one month on return and asked by the authorities why he went to [Country 2]. He did not answer them.

    aa.After they released him he went home to [Village 1]. In [Village 1] the authorities would check on his routine and sometimes they would summon him to their office. He was asked where he had been and what he had been doing. They beat him at the office.

    bb.He used his own genuine passport to leave Vietnam for Australia and was not questioned by the airport authorities. He does not know why.

    cc.He attended church in his village every day, morning and night.  He also participated in [activities] to help the poor.  [Location] is where the applicant’s church is. It is [near] his village.

    dd.In 2009 the applicant was in Lam Dong for work. Then he got a call to return for the [fellowship] in the [town]. When he went there to help the fellowship to pray for the Catholic people, the authorities found out and followed the applicant so he returned to Lam Dong.

    ee.There are no other incidents to talk about.

    Delegate’s Decision

1. The Delegate accepted that the applicant is Catholic. The Delegate gave the applicant the benefit of the doubt he was involved in a confrontation with the authorities over the acquisition of his sister’s land and demolition of her house.

2. The Delegate did not accept that the applicant was of any further interest to the authorities or had any further problems with them.

3. The Delegate did not accept that the applicant’s wife was from Lam Dong as their marriage certificate stated her place of residence was [in] Nghe An province.  The Delegate noted the applicant obtained a household registration in January 2011 so did not accept he was concerned about the authorities knowing his place of residence.

4. The Delegate accepted the applicant attended a worship service which was interrupted by the authorities but did not accept the applicant was followed afterwards and went into hiding.

5. The Delegate did not accept the applicant had been to [Country 2] or that he was detained and beaten on return from [Country 2] to Vietnam.

6. The Delegate accepted the applicant paid a bribe to obtain his passport but did not accept he was required to do so because he was a political dissident. The Delegate noted that the applicant departed Vietnam legally from Ho Chi Min airport.

7. The Delegate accepted that the applicant’s details may have been publicly available for a short time as a result of the Department’s January 2014 ‘data breach’.  The information included name, date of birth, nationality and details about detention in Australia. It was accessed by 104 IP addresses while it was publicly available.

8. The Delegate did not accept that the Vietnamese authorities have questioned the applicant’s family about the applicant since his departure from Vietnam, given their most recent enquiry was in February 2013, before he departed Vietnam.

9. The Delegate was not satisfied that there was a real chance the applicant would be seriously harmed in Vietnam as a Catholic.

10. The Delegate did not consider that the applicant had a profile that would cause him to be considered to oppose the Vietnamese authorities.

    Information to the Tribunal

    Written Submissions

11. On 2 May 2017 the applicant’s Agent submitted the following information to the Tribunal:

    a.A submission restating the applicant’s claims; addressing the Delegate’s decision;  highlighting new information, namely that the applicant has become part of the Catholic church community in Australia and has participated in demonstrations outside the Vietnamese Embassy and fund-raising for pro-democracy group ‘Bloc 8406’; that he has a sur place claim because of the Department’s data breach while he was in detention; and setting out the possibility of interpreting errors during the applicant’s Departmental interview.

    b.A submission addressing DFAT’s Country Information Report on Vietnam of 31 August 2015.

    c.An outline of country information about the Catholic church in Vietnam; Freedom of religion in Vinh Diocese; the Dong Yen Parish land dispute of 2015; the My Yen Parish events of September 2013; the Con Cuong Parish events of 1 July 2012; the Thai Ha Church of Hanoi; protests against the Formosa company in Vietnam; political opinion and human rights in Vietnam; exposure of asylum-seekers to Vietnamese authorities in Australia; the Department’s 2014 detention data breach; prison abuses in Vietnam; return of asylum-seekers to Vietnam; human rights violations in Australian immigration detention; and Vietnamese laws.

    d.A copy of DFAT’s Country Information Report of 31 August 2015.

    e.A copy of a DFAT Country Information Report of 20 March 2015 regarding ‘Treatment of Returnees’.

    f.A copy of a DFAT Advice of 24 July 2013 regarding ‘Treatment of Returnees’.

    g.A Departmental document entitled ‘Cohort-Specific Entry Screening Advice – Interim Advice – Vietnamese nationals claiming fear of harm relating to illegal departure’.

    h.Submission by Dr Peter Hansen, dated 2 September 2011, regarding the situation of Catholics in Vietnam.

    i.A letter from the Bishop’s Office of Vinh Diocese, dated 8 January 2016, regarding the Vietnamese government’s refusal to allow a visit by a Delegation of the German Council of Bishops to the Vinh Archdiocese.

    j.An email from Hoi Trinh, dated 2 September 2013 regarding the A18 office in Vietnam and the law of illegal departure and entry in Vietnam.

    k.An undated letter from Tony Burke MP to the President of the Vietnamese Community in Australia, Mr Tri Vo.

    l.A letter to the Commonwealth Ombudsman from the President of the Vietnamese Community in Australia, WA Chapter, Mr Anh Nguyen, dated 16 September 2013.

    m.A reply from the Commonwealth Ombudsman to the President of the Vietnamese Community in Australia, WA Chapter, Mr Anh Nguyen, dated 21 November 2013.

    n.A statement by Mr Truong Doan, dated 28 September 2016, regarding the return to Vietnam of Vietnamese asylum-seekers.

12. On 5 May 2017 the applicant’s Agent submitted the following information to the Tribunal:

    a.A letter of support for the applicant, dated [in] May 2015, from [a named person].  She writes that the government has control of Nghe An province; she believes the applicant’s story of being harassed by the authorities; the applicant has been helpful in community work in Australia; the applicant has obtained paid employment [in] Australia; he sings in the church choir; he participated in a public demonstration [in] April 2015 in front of the Vietnamese Embassy in Canberra; he attended the Remembrance Day of the fall of Saigon [in] April [2015]; and he helps collect money from passers-by for fundraising events organised by the Vietnamese community to help earthquake victims in Nepal.

    b.A Health Assessment form for the applicant, dated [in] April 2013, stating he scored ‘0’ for Depression, ‘0’ for Anxiety, and ‘0’ for Stress. The questions on the form do not appear to have been completed.

    c.A letter from the applicant, dated [in] May 2015, stating that he has become an active member of his community and the Catholic community; he has a full-time job; he has joined the local choir; he has joined [a] band; he participated in Anzac day [on] 25 April 2015; he participated in a demonstration in front of the Vietnamese Embassy in Canberra [in] April 2015; he participated in a Remembrance Day event for the fall of Saigon [in] April 2015; he participated in collecting signatures for a Bloc 8406 petition; and a request for people to sign an attached list to support him. A two page list of signatures, each [dated] May 2015, is attached.

    d.A letter from the applicant to his Parish priest, dated [in] April 2013, requesting certification of his Baptism and Sacrament ceremony.  On the same page there is a note dated [in] April 2013, by [a named person] of [an organisation], stating that the applicant has successfully completed the Catholic Doctrine Course. On another page on similar paper there is a letter from [the organisation], dated [in] April 2013, confirming the applicant’s Sacrament ceremony [in] November 2011, stating that the applicant and his wife married at [the] Parish [in] November 2010 and stating that the applicant had to flee the country due to special circumstances. The description of the documents comes from accompanying English translations.

    e.A Statutory Declaration by the applicant dated [in] May 2017, which includes the following (in summary):

    -He found his Departmental Interview stressful and confusing.

    -He is a practicing Catholic, as is everyone in his village.

    -He did not provide all his information at his Entry interview because of worry and fear.

    -He was an active member of is local church community

    -He married his wife in the parish [in] November 2010.

    -He always acts according to his faith and is sensitive to injustice.

    -His sister and her family rely on the rest of the family for support in raising her children. The authorities refused assistance to her.

    -[In] August 2007 while the applicant was a school student he fought with the local authorities when they tried to seize his sister’s land and demolish her house. There is an error in his written application that refers to the incident occurring in 2008. This was an interpreting mistake. It occurred in 2007 when the roof was being completed. The authorities intervened to remove the roof. Many parishioners came to witness this. When the police pushed his sister the applicant intervened to separate her and her child from the police. Neighbours came to fight with the police. He was arrested and beaten by the police. He was detained for 24 hours, interrogated and beaten.

    -From then on the local authorities and their agents made his life impossible. They intimidated and attacked him going to school and church. In December 2007 he had to stop going to school and in early 2008 he went to Lam Dong to flee the local authorities. He has been displaced since that time.

    -Since the August 2007 events he has not been able to return to his home town permanently.  It is incorrect that he worked as [an Occupation 1] in Nghe An from 2009 and 2011, he does not know why this is in his Protection visa application.

    -From 2008 until March 2011 he worked in [Country 1] on and off, crossing back into Vietnam to renew his permit for [Country 1]. When he worked in Vietnam it was in Lam Dong.

    -[In] March 2011 he went to [Country 2] to work. [In] December 2012 he was deported back to Vietnam.

    -In February 2013 he fled to [Country 1] briefly after he was harmed by the Vietnamese police on return from [Country 2].

    -In March 2013 he returned to Vietnam to flee from Ho Chi Minh airport.

    -He was often stopped and questioned. He was once brutally attacked and injured coming home from school.

    -In 2009 he was attacked and injured by thugs in Lam Dong and had to have stitches to his lip.

    -In December 2012 he was detained in Hanoi for one month, interrogated and tortured [and had] beatings.

    -In January 2013 he was beaten and interrogated by the local police in his home town.

    -In August 2013 the A18 special branch police from Vietnam came to the detention centre in Australia. They met with many Vietnamese asylum-seekers in individual interviews. His friends told him that they had documents given to them by the Australian immigration officials before the interviews. The applicant did not meet with the A18 officers but he was fearful.

    -In October or November some Vietnamese asylum-seekers were seized at the detention centres and sent back to Vietnam. In late January 2014 there were raids in which some Vietnamese asylum-seekers were seized and taken to [another location].

    -He fears the consequences of his personal information being leaked in the Department’s data breach. He believes he is of increased adverse interest to the authorities in Vietnam.

    -He is grateful for permission to work in Australia.

    -He has established connections with the church in Australia.

    -He has participated in protests at the Vietnamese Embassy and Remembrance Day community event as well as fundraising activities for the Australian chapter of Bloc 8406.

    -It is dangerous for him to return to Vietnam because of his record of being considered anti-government due to his Catholicism, and for fleeing to Australia. He will continue to stand up for his faith and convictions in Vietnam.

    Tribunal Hearing, 5 May 2017

13. The applicant appeared before the Tribunal on 5 May 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 following is a summary of the information provided by the applicant at the hearing:

    a.The applicant was born in [Nghe] Loc district, Nghe An city.  He lived there most of his life. He also lived in Lam Dong in 2008 for two to three months.

    b.He has lived in other countries, [Country 1] and [Country 2]. He was first in [Country 1] in 2008 for about 3 to 4 months.  From then on he spent 2 to 3 months in [Country 1] every year because he was being followed by the Vietnamese authorities. In [Country 1] he lived in [one of the cities].  He always stayed at the same place there but he does not know the address.  He worked while he was there in [Occupation 1].  [Details deleted].

    c.He finished school at the beginning of [year].  His school was about 10 kilometres from his home. He would get there by bicycle. His church was located close to his home, about 5 to 10 minutes walking [distance].

    d.He started working [when] he finished school in [year]. He worked in Lam Dong for a sub-contractor and for his [brother] there.  Lam Dong is about a 24 hour journey from the applicant’s village.  He only worked in Lam Dong for 2 or three months. He had no other work there or anywhere in Vietnam.

    e.He supported himself by living with his parents and working in [Country 1] each year. He would only stay in [Country 1] for 2 to 3 months because he would miss his parents.  He would return to Vietnam to look after them for a few weeks and then go back to [Country 1] to work for a few months.  From 2008 until 2010 he went back and forth between [Country 1] and Vietnam doing this. He could not find work in his village.

    f.The applicant got married in [2010]. He met his wife in Lam Dong at his brother’s wedding there. They lived together at [Village 1] after they married until the applicant went to [Country 2]. While he was in [Country 2] his first child was born. After he came to Australia his second child was born. His wife and children moved to Lam Dong in June 2016 because there is not a good influence in [Village 1]. His wife works sometimes. The applicant also sends her some money from his work in Australia.

    g.The applicant’s mother and one sister are living in [Village 1]. His brother and other sister are in Lam Dong.

    h.The applicant cannot return to Vietnam because he was oppressed and harassed there.  He started having problems in August 2007. His family gave his [sister] a piece of land [to] build a house. The authorities demolished the house. The applicant and his relatives intervened to prevent them.

    i.The land was inherited from the applicant’s paternal grandparents. It was not registered so the family had no paperwork for it. When the family lodged an application for the land to be recognised as theirs the authorities refused to approve it.  This is why the authorities demolished the house. The authorities wanted to confiscate the land. The applicant’s family proposed to buy the land but the authorities also refused this. The applicant was in [school] when the house was demolished. He can’t remember how old he was then. He completed [number] years of school.

    j.His sister’s house was demolished [in] August 2007. On that day the local authorities sent police to remove the roof and demolish the house.  There were about [a number of] police from [Village 1] present. The applicant was doing activities in the local parish church when other parishioners came and alerted him.  This was at about [time] pm.

    k.He and some parishioners rushed to his sister’s place. When they arrived the applicant’s sister and brother-in-law and their children and workers were present as well as the police.

    l.They watched until the police tried to demolish the house.  The police pushed his sister away causing her child to fall to the ground. The applicant was concerned and intervened. This was about 5 or 10 minutes after he arrived.

    m.The house was made of cement.  The police demolished it with [tools]. The walls were only 20 cm thick. The police had demolished the roof and half the house when the applicant intervened.

    n.The priest rang people to help them. About [number or number of] parishioners turned up to help. Some were already there when the applicant arrived and some came later. The applicant was present at the site for about three hours.

    o.The applicant pushed the police officer who had pushed his sister  At the same time many others started to struggle with the police. 

    p.His sister’s husband ran away to hide. People advised him to run away to avoid getting caught and arrested. This happened before the applicant’s sister was pushed by the police. When the police came the parishioners talked to the applicant’s sister’s husband and advised him to run away and hide. So when the event occurred he was not there. He has a hot temper. He left his wife and children there. He ran away before the applicant arrived.

    q.When the applicant pushed the police officer other people came to help. During the struggle they wounded one policeman, his [body] was [injured].  No one else was hurt. The struggle lasted one to two hours. The whole event lasted one to two hours.  After the police attempted to demolish the house there was a struggle and there were arguments and struggles between the two parties.

    r.The police accused the applicant of [injuring] the police [officer’s]. The police were armed with rubber electrical sticks and guns. They used their electric sticks to beat the crowd but did not fire their guns.

    s.After the initial struggle when the police officer’s [body] was [injured] the fighting stopped and people calmed down. The fighting lasted only a short moment after the applicant intervened. Then the police tried to demolish the house again but the crowd stood up against them. This lasted one to two hours.

    t.By the time the applicant arrived the roof had been removed. When the police then started to demolish the walls the applicant faced them and the struggle started.

    u.The police were not able to completely demolish the house. The house was later rebuilt and the applicant’s sister and her family are living in it.

    v.Some police took the police officer [was injured] to hospital. The applicant and his sister and her child were arrested.  This happened at the end, after one or two hours. The police arrested the applicant at the site and took him to the police station by motorbike. They asked his sister to go to the police station for work, to discuss the permission to continue building the house. They told her at the police station she did not get permission to build house. She argued if that was the case the authorities would have to give her another piece of land to make a house.

    w.His sister was unable to get official paperwork or able to buy the land. But because she works in the parish and gets protection from the parish she was able to get the house rebuilt and live there. She is living there now. Her husband travels to [Country 1] and Lam Dong for work and sends her money. The parish and parish priest protect her because of her children.  The children were refused public school but they are able to go to the Catholic school.

    x.The applicant was arrested because he participated in parish activities and candlelight prayers and demonstrations against harassment by the authorities. His involvement in parish activities was noticed by the authorities but they did not get enough evidence to arrest him so they seized the opportunity to arrest him at his sister’s place. At the police station they beat and tortured him. They tortured him by putting him in a room where they beat and punched him with rubber. They later rendered his schooling difficult.

    y.There were other parishioners involved in activities too. A number of parishioners were being followed and threatened. They were not arrested because they only participated to help the applicant’s family. The applicant is a direct relative so he was arrested and accused.

    z.Because the police officer was injured in a big turmoil they did not recognise the applicant at the time.  Two or three police knew the applicant but they did not recognise him.  After the struggle dispersed they saw him and recognised his relationship with his sister.  Others fought with police but it was a big crowd so the police did not know who was doing what. It was a crowd of [number to number] people.

    aa.The police forced the applicant to accept that he injured the police officer but the applicant said it was not him.  The police kept the applicant for 24 hours and kept torturing him. Many parishioners enquired for the applicant’s release and told the police that by law they could not keep the applicant for 24 hours without evidence. So the police had to release him.

    bb.After the applicant’s release the police hired the military to stop him on his way to school and beat him.  At school he faced difficulties. They tried to stop him going to church.  He was only beaten and punched so he had no injuries, just pain and bruises. His family took the applicant for treatment, x-ray and ultrasounds, but the doctor said his body suffered nothing.

    cc.Both the military and thugs would attack the applicant on his way to school. He can’t remember how many times this happened but it was very often during August til the end of 2007. So in early 2008 he decided to stop study.  He was not beaten very hard because over [number of] school friends would come to his rescue.

    dd.The authorities did not do anything to stop the applicant going to church. They had no time because it is a short distance between his home and his church. But if the applicant went to other parishes for activities they tried to stop him. The authorities encouraged the non-Catholic residents to make a barrier along the way he would go to the various parishes. They did this because they didn’t want him to participate in the activities of the parishes. They were trying to stop the organisation of demonstrations to oppose illegal acts of government.

    ee.The applicant would protest against illegal land acquisitions and group together to pray.  For example he would help defend the parish priest when there was an attempt to demolish the football yard.  The applicant can’t remember how many times he was involved in such activities.

    ff.He did not mention these details before for fear information would be leaked. He mentioned them at Perth but did not write them down because he told his representative he would speak of them during the hearing.

    gg.The applicant was followed in Vietnam. The authorities hired thugs to follow him. When he went to Lam Dong to work for 1 to 2 months, on his way back the thugs beat him and injured his lip. The thugs were hired as revenge on the applicant for participating in Catholic protests and his involvement in the events on his sister’s land.

    hh.The last time the applicant participated in a demonstration against government in Vietnam was probably in September 2010 at [a location].

    ii.The applicant and his wife married in [Village 1]. The applicant met his wife at his brother’s wedding in Lam Dong in June or July 2009. While the applicant was in Lam Dong the police followed him every day.  The Tribunal put to the applicant that in his written statement he had stated that he returned to his village [for] his brother’s wedding but fled to Lam Dong after a warning from a friend. The applicant responded yes he wrote his brother organised his wedding in Lam Dong in June 2009 but after that they went back to their home village to celebrate with the relatives of both families.

    jj.The applicant did not remain in [Country 1] because his parents are old and he missed them. So he would visit them every few months in his home village.  It was convenient for him to work in [Country 1] and go back and forth to visit his family. However due to the event that occurred his parents feared it would be a danger for him to continue living that way. The last occasion the applicant had a problem with the authorities in Vietnam was when he was deported back from [Country 2]. He was arrested and jailed for one month in Hanoi. After this he fled to Australia.

    kk.The applicant’s activity in Australia will cause him problems on return to Vietnam because the activities are opposed to the current regime. Because he has lodged a Protection visa application in Australia he is no longer considered a Vietnamese citizen.  He has acted politically against the Vietnamese government through his participation in demonstrations and protests [in 2015-2017], in front of Vietnamese Embassy in Canberra. The demonstrations were against the Formosa factory pollution, human rights violations by the government and the imprisonment of fighters for democracy.

    ll.The applicant participates in the Catholic church in Australia. However he is now too busy with work.  The church activity he is involved in is the church choir.

    mm.He has participated in meetings and activities of the Viet Tan party in Australia. It is the only political organisation he is involved with in Australia. He agrees with their struggle against the Vietnamese regime regarding human rights. He helps them fundraise. He did this by buying a ticket to attend a fundraising dinner. He also participates in VOICE organisation to help asylum-seekers worldwide in June/July each year.

    nn.He has not been involved in anything else in Australia.

    oo.He wrote that he was involved with Bloc 8406 because he mainly attended fundraising activities of Viet Tan and VOICE and other fundraising for other groups. He wrote that he participated with Bloc 8406 because he knew people representing Bloc 8406 struggling for human rights in Vietnam for a few months. But now he has switched to Viet Tan. The head of Bloc 8406 in Australia was President Brother Du. 

    pp.A friend of the applicant was interviewed by police force A18 who promised him he would not be harmed when he returned to Vietnam. However when his friend returned he was arrested and jailed for a period and then he was unable to find a job. The applicant does not know his name, he was in the detention centre.

    qq.The Tribunal asked the applicant why he wrote in his Protection visa statement that the incident with his sister’s house occurred in August 2008. The applicant replied it could be because of the interpreter, as it occurred in 2007.

    rr.The Tribunal put to the applicant that he has written in his Protection visa statement that two police officers were injured at his sister’s land not one.  The applicant responded only one police officer was injured.

    ss.The Tribunal put to the applicant that he has written in his Protection visa statement that his sister had also been arrested with him when her house was demolished. The applicant responded no, she just went with the police to their station to discuss work.

    tt.The Tribunal put to the applicant under s.424AA of the Act that the recording of his interview with the Department delegate also indicated he stated the land incident occurred in 2008. The applicant responded that he remembered that while being in the detention centre during the interview he remembered that the event occurred [in] August 2007 and that in 2008 he obtained a passport. When his representative mentioned to him it was 2008 he said it definitely did not occur in 2008. He attributes the confusion to his mental health issue, being a long time in the detention centre, and to misinterpreting by the interpreter.

    uu.The applicant’s agent submitted that in considering the issues with dates and credibility the Tribunal should take into consideration the applicant was in detention a long time and he suffered torture and trauma in [immigration detention]; that the events happened a long time ago when he was young and a school student; and that he was struggling to survive in very difficult circumstances there.

    vv.The applicant is now [age] years of age. The Tribunal put to him he would therefore have been [age] years old when his problems started. The applicant responded he didn’t know but he was born in [year].

    ww.He had to hire the services of others to obtain his paperwork in Vietnam. They bribed the city authorities for his passport to be issued.  In Vietnam anything gets passed with bribes.

    Tribunal Hearing, 24 July 2017

1. The applicant appeared again before the Tribunal on 24 July 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 following is a summary of the information provided by the applicant at the hearing:

   a.The Tribunal asked the applicant why the various parish documents he submitted were each dated the same date, [date] April 2013, with three of them written on the same type of paper in similar handwriting, if they were authored by different people.  He responded that his wife wrote the documents. He had scanned a handwritten letter to her but the legibility quality was poor so she rewrote his words onto the document herself. She also wrote the statements from the parish officials and took them to the officials for their signature and stamp. He only just realised the handwriting was all similar

   b.The document from the priest [states] that “due to the applicant’s circumstances he had to go away to another parish for his safety and subsistence, please help him so that he can benefit from all the sacraments that all other parishioners are benefiting from in the parish where he is living.”

   c.The applicant married his wife in [the] parish because that is where he met her and they got together. So they decided to marry there.  His wife is from [another] village in [the] parish.  He met her during the wedding of a cousin.  At the time he lived in [location], Lam Dong. This was about 3 or 4 months before they married in 2010.

   d.After his marriage he and his wife lived in his home in his [village]. Three months later he had to flee to [Country 2].

   e.He was about [age or age] years old when he began school.  As he wrote in his Protection visa application he completed year [grade] at school.  He stopped going to school when he was about to start year [grade]. This was at the end of 2007.  He went to school over a period of [number] years. The Tribunal put to him that if he was born in [year], and started school when he was [age or age], this would be the year [year or year]; and if he attended school over the next [number of] years then this would be until [year] or [year]. He responded no, it was until the end of [year], and that he was one to two years older than his classmates. His Agent submitted that the school year starts in the middle of the year in Vietnam.

   f.The Tribunal put to the applicant that he wrote in his Form 80 that he moved to Lam Dong in August 2006. He stated yes, he was in year [grade] of school and went there during school break to look for work to make money.  The Tribunal put to him that his responses in the form state he lived in Lam Dong from August 2006 to March 2011. He responded that he went there on school holidays for two months.

   g.The police released him even though they believed he was responsible for the attack on the police officer because according to current Vietnamese law, if in 24 hours they don’t have enough evidence then they need to release a person.  The parishioners insisted with police that they follow the law.

   h.After his release in August 2007 the applicant tried to attend school again.  The police sent thugs and drug addicts to cause difficulties for him to prevent him going to school and to stop his parish activities. The police did this because of the conflict at his sister’s land and because he participated in various activities, namely candlelight prayer for another parish that suffered from oppression. The police knew his route to school and that it passes by the police station.

   i.He knew it was the police who arranged for the thugs and drug addicts to attack him on his way to school because previously he had no problems with anybody. He believes the police were responsible because every time he asked for administrative paperwork from the police he was rejected.

   j.After his release in August 2007 he had no contact with the police but they followed him via the thugs wherever he went, to school or mass or candlelight prayer, until at the end of 2007 his family arranged for him to flee.  The Tribunal asked him why then it is written in his Protection visa that the police continued to summons him and his sister to the police station and to treat them harshly to try to force them to tell the police who had injured the police officers.  The applicant responded that sometimes the police summoned him to the police station but he never attended.

   k.The only contact the applicant had with the police after his release in 2007 was in 2012 when he returned from [Country 2] and his arrest in Hanoi. The police also kept following him from time to time. The Tribunal asked him why it is written in his Protection visa application that following his 2007 release the police would stop and question him regularly. He responded that from time to time the police would stop him and ask him to indicate the actual people who provoked the attack on the police officers.

   l.The applicant was never attacked or assaulted in his village but he was attacked several times on his way to school and once in Lam dong.  He cannot say, even approximately, how many times he was attacked on his way to school as it was over ten years ago.

   m.The Tribunal asked him why he referred to being attacked on only one occasion in his Protection visa application. He responded that he remembered that time but could not remember other times.  On that particular occasion it was the authorities, the village police, who attacked him.  At that time they arrested him and beat him with a police stick.  He was not arrested. It was not the police who did this but thugs who were sent by the authorities. He doesn’t know when this occurred, or how long before he departed Vietnam in 2008.

   n.When he finished school he applied for his paper work to go to [Country 1].

   o.In Lam Dong he was attacked and his lip was cut. This was in 2009 but he can’t remember which month. He had met his wife. He was out with her and a group of several other male and female friends. A group of men stopped them. One asked who is named ‘[name]’ and a person in the group pointed at the applicant.

   p.He and his wife met in Lam Dong. She worked at Lam Dong. The Tribunal put to the applicant that he had earlier told it he and his wife met in [the] parish in mid-2010.  The applicant responded no, they married in 2010.

   q.The people who stopped the applicant were a group of mostly young people. He suspects they were sent by local police to follow him and that police from [Village 1] gave his information to the local police. The applicant realised one of the men who stopped them knew the applicant’s face. The applicant did not know who he was. The men attacked the applicant and injured him. His wife took the applicant to a village for treatment.

   r.After this event, there were no other incidents where he was attacked.  But from time to time he was interrogated by thugs sent by police who asked him about his ID. He was also summoned many times by the police but did not present himself.

   s.The applicant experienced no other incidents in other parts of Vietnam, apart from those in his village and in Lam Dong. The Tribunal asked him why he had previously spoken of an incident in [District 1]. The applicant responded because it is close to his village, about 20 kilometres away. In 2009 he went to [District 1] from Lam Dong to participate in a candlelight prayer. After this he started travelling to his village to see his parents. But at the intersection to [Village 2] he was informed he was being followed so he turned into [Village 2] to hide himself in the home of his uncle-in-law. His cousin helped him to escape to the bus station to go back to Lam Dong.

   t.He thinks he was followed because of the issue at his sister’s property and because of his participation in various demonstrations and candlelight prayers, so that someone recognised his face.  He does not know who was following him but believes it was someone in the police and administration.

   u.There was a big crowd at the Candlelight prayer. Nothing happened there. The Tribunal asked the applicant why it is written in his Protection visa application that the authorities attacked with tanks and troops. He responded that after the ceremony the government sent troops to attack the crowd but not during the ceremony. It was a long time ago and he cannot remember what happened.

   v.He had no problem departing Vietnam for [Country 2]. He applied for a tourist visa so had no difficulty. He left legally on his own passport. In [Country 2] he [worked]. He had distant relatives from his side and from his wife’s side who lived in [Country 2] in the same city.  He was arrested and jailed in [Country 2] from [August] until [December] when he was deported.  He was arrested with [other] Vietnamese and deported with [number of] others.  He doesn’t know what happened to them.  The applicant was not a trafficker and was not involved in organising others to go to [Country 2].

   w.When he landed at the airport back in Vietnam he presented his passport to a Customs Officer who took him to a room. Later he was taken to jail. He asked the reason but was not told. His family in Vietnam were waiting for the applicant to return. When he did not appear they asked an in-law who worked for the police administration in another district for help. The in-law traced where the applicant was being held and liaised with the applicant’s family to bribe the Hanoi police to release him.

   x.He was in jail in Hanoi for about one month.  During that month the police interrogated him about why he was in [Country 2]. He told them he was trying to get work but they kept asking.  They would not explain why he was detained.  Nothing else happened to him in detention. He was not beaten. The Tribunal asked him why had had previously stated he was tortured in the Hanoi prison. He responded they kept pushing him about where he had been and what he did in [Country 2] so it was a kind of mental torture. He can’t remember exactly what happened. He does not know which jail he was in in Hanoi. He was escorted by two police out of the jail where his relatives were waiting for him. 

   y.The Tribunal put to the applicant that there were media reports in Vietnam of deportations of Vietnamese workers around the same time the applicant was deported from [Country 2], that the deportees were depicted as victims not culprits, and that there were no indications that any of them were jailed on return to Vietnam. The applicant responded that there were many imprisonments but under the Vietnamese regime they do not divulge the news outside.

   z.The Tribunal put to the applicant that country information indicated that it was the people involved in organising people trafficking or smuggling, not the ordinary traveller, who are of interest to the Vietnamese authorities. He responded that the Vietnamese authorities say it is one way but actually they act in a different way. He has many friends in the detention centre who were visited by a police squad and promised safety and easy treatment on going back home, but they could not live a normal life and have been prevented from doing many activities and having a decent life. They cannot get a job. When they ran their own business the authorities sought various ways to prevent them doing it. In 2014 the applicant’s personal data was breached and he wonders if the Vietnamese authorities have his personal records.

   aa.He was not considered a criminal in Vietnam and could come to Australia. However while in Australia he has applied for a Protection visa and participated in various activities opposing the current regime, so he is now considered a criminal and traitor.

   Tribunal Hearing, 31 July 2017

2. The applicant appeared again before the Tribunal on 31 July 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 following is a summary of the information provided by the applicant at the hearing:

   a.The applicant submitted his Marriage Certificate. It is dated [in] January 2011, because  this was the date he and his wife went to register their marriage. They had married at a church in November 2010 but [in] January 2011 they registered the marriage with the authorities in Nghi Loc in [Village 1]. The applicant had to present his Household Registration Booklet and his wife’s Household Registration Booklet to register their marriage.

   b.He went to [Country 2] because he was oppressed by the local authorities and they caused too much pressure for him. It was too dangerous for him to stay living in his home area.  This was because of the conflict at his sister’s land in 2007. He went to [Country 2] [in] March 2011. He travelled then because his wife’s family had a brother in [Country 2] so they were able to help him travel here. This was the only reason he went to [Country 2] then.

   c.The Tribunal asked the applicant why it was written in his Protection visa application that he met and married his wife in Lam Dong and that “[a]fter their marriage his wife returned to his village to obtain a marriage certificate for them. She had to pay a bribe to obtain the marriage certificate because of the applicant’s issues with the authorities. When she was obtaining the certificate the authorities recognised the applicant’s name and asked about his whereabouts.  Because they knew where the applicant’s wife originated from they were able to find the applicant. His wife’s parents were worried so arranged for the applicant to go to [Country 2].”  The applicant responded that when he approached the local authorities to register his marriage he revealed his residential address to them. When he and his wife registered the marriage with the local authorities his wife went by herself and he did not attend. They both went to the office but only his wife entered it. They knew someone working in that office and after the certificate was prepared his wife brought it outside to him to sign and then she took it back into the office. He did not enter the office with her because during that time the authorities caused too much pressure on him and he dared not go inside.

   d.After he returned from [Country 2] the local police called him to attend and investigated him. They asked why he had left and where he went. After that whenever the applicant went to church he was always followed. He could not go about freely. The local police called him to see them a couple of times a week and when he would attend they would follow him. After one month he found it was not safe for him so he decided to move.

   e.The Tribunal asked the applicant why it was written in his Protection visa application that after he returned to his village from [Country 2] a court case about the 2006 [sic] incident was opened against him and he was beaten. The applicant responded that probably he made a mistake and that the incident happened in 2007. After his return from [Country 2] we was taken into custody and tortured.

   f.The applicant knows that Bloc 8406 helps people who campaign for human rights in Vietnam. They have meetings and campaign against the Vietnamese authorities and request the authorities to release those in custody because of human rights and who  ask for freedom of  speech. He only attended and participated in Bloc 8406 in Australia so he doesn’t know much about them. After he was released from detention he joined the group in 2015. He was involved with them for over a year, but for almost a year he is not in contact with them because he joined the Viet Tan and didn’t have time for Bloc 8406.

   g.He knows that Viet Tan fights for human rights and asks the authorities to release prisoners of conscience and they organise campaigns to request the authorities to let the Catholic church followers have freedom of religion and they are against the Formosa incident. The Formosa plant released chemical poison into the ocean and endangered many people and affected the fish. Viet Tan requests the authorities to compensate people fairly.

   h.The applicant has been with Viet Tan for over a year.  He did not mention his involvement with Viet Tan in his most recent Statutory Declaration because he made a mistake and forgot to.  He participates in Viet Tan by attending demonstrations and by raising funds by preparing soup, to send money to Vietnam to support people involved in campaigns. He has done this about 8 or 9 times at the end of each month.

   i.The Tribunal put to the applicant that it could not locate any reports of a demonstration outside the Vietnamese Embassy in Canberra [in] April 2015. The applicant stated there was one and he was involved in it.  There were about [number] people present. The applicant showed the Tribunal photographs, dated [in] April 2015, on his mobile phone from this demonstration and agreed to submit paper copies of the photos to the Tribunal.

   j.He also attended a protest outside the Vietnam embassy in Canberra a few days later [in] April 2015. The Tribunal put to him that he had previously stated he had attended a commemoration day [in] April 2015. He responded no he didn’t.

   k.He also attended a protest outside the Vietnam embassy in Canberra [in] April 2017 and showed the Tribunal photographs from his phone of this protest.

   l.The Tribunal put to the applicant the effect of s.91R(3) of the Act in relation to his political activity in Australia. The applicant did not respond.

   m.The Tribunal asked the applicant why it is written in his Statutory Declaration that in early 2008 he went to Lam Dong to flee the local authorities, not [Country 1]. He responded that he wrote he went to Lam Dong and then to [Country 1].

   n.The Tribunal put to the applicant that country information suggests there is no problem for ordinary practicing Catholics in Vietnam unless they are involved in political activity against the government. The applicant responded that he participated in campaigns to request the government to treat churchgoers equally, and to stop taking away church  property. When asked which campaigns he was involved in he responded that they pray and have a vigil night to raise the activity with the government authorities who cause trouble with churchgoers, and ask the government to treat them fairly and request the authorities to look at human rights.  The Tribunal asked the applicant if he could provide more specific detail about the campaigns he was involved in and he responded for example when they witness the authorities demolishing some of the church the priest organises a vigil night or prayer session, so they went there and prayed, or they went to their local church and prayed.  The Tribunal asked when and where the applicant had gone to pray at a church that was partially destroyed by the authorities and he responded that he could not remember when and that he prayed at his local church.

   o.The Tribunal put to the applicant that country information indicated there was no problem for failed asylum-seekers returned to Vietnam as long as they were not involved in people smuggling.  He responded that in Vietnam the government says one thing but does something else and he didn’t trust them.

   p.The Tribunal asked the applicant what problems he thought would be caused to him in Vietnam because information about him was temporarily available on the Department’s website, due its ‘data breach’. He responded that while he was in detention some Vietnamese police from the  A18 squad came to the detention centre and investigated some people there, but he was not included in their investigations. But because he has applied for refugee status it will be much more difficult for him.

   q.The Tribunal put to him that the information available as a result of the data breach did not reportedly include the fact he had applied for a Protection visa or anything about his claims for protection.  He responded that before 2014 in the detention centre people from the Department confirmed with the detainees that there was no personal information released to outside. But in February 2014 the information was released. If it was not released why did the Vietnamese police come to the detention centre and investigate people.

   r.Under s.424AA of the Act the Tribunal put to the applicant, the following information from the applicant’s Departmental interview, which appeared inconsistent with his evidence at hearing. The applicant’s responses are also included.

   i.He stated in the Interview that two police were injured at the incident at his sister’s property. 

   The applicant responded that during his time in the detention centre his mind was not very clear, and when he released he was involved in finding ways to survive.

   ii.He stated in the Interview that his oldest sister was also arrested with him during the incident, and released after one day.

   The applicant responded that there was a mistake in his statements because he had become fearful and confused in the detention centre. 

   iii.He stated in the Interview that he was one of the people who had beaten the police officer, but he did not admit it.

   The applicant responded that he did not beat the police officer, that during the fight someone hit the police but it was not he. The police suspected he was the one.

   iv.He stated in the Interview that people tried to attack him many times on his way to church.

   The applicant responded that when he and others attended the local parish church or travelled to different localities they were attacked, but not from his home to his local church.

   v.He stated in the Interview that there are no other incidents that made him come to Australia apart from his arrest in 2008.

   The applicant responded that when he came to Australia he had an interview   in [different states] but in none of these he disclosed that he had travelled to [Country 2]. When the Department gave him a legal representative he then had a chance to reveal that he went to [Country 2].

   vi.He stated in the Interview that ten days after he returned from [Country 2] in December 2012 the authorities started stopping him when he went out, they summoned him to their office and told him he could not go anywhere.

   The applicant responded that after he returned from [Country 2] he was arrested by the Hanoi police for one month. When he was released the local authorities continued to ask him to come see them and he was not allowed to go anywhere. It was like he was under house arrest.  He felt unsafe so he decided to travel to [Country 1].

   vii.He stated in the Interview that in [Village 1] the authorities would check on his routine and sometimes summon him to their office.  He was asked where he had been and what he had been doing. He was beaten at the office.

   The applicant responded that after he return from [Country 2] the Vietnamese authorities requested him to attend their office and they beat him.  He tries to forget those horrible times.  The Tribunal  informed the applicant the information was in relation to the period before he went to [Country 2]. The applicant then responded that before he went to [Country 2], every time he went to church they caused too much trouble for him and followed him. They stopped him on his way to church and hired someone to attack him.

   s.Because of the problems from the village authorities after the applicant’s return from [Country 2] he went to [Country 1]. He then returned to his home village for one week to visit his wife and child, before travelling to Australia. He was fearful of the local authorities and police while he was in his village for the week.

   t.He obtained his Vietnamese ID card from the police of Nghe An province.  He did this in 2013 but he cannot remember when. He obtained it as he needed it to travel to different places. The Tribunal put to him that his ID card indicated it was issued [in] March 2013. The applicant stated it must have been after he returned to Vietnam from [Country 1] as he travelled to [another country] [in] March 2013.  The Tribunal asked him why he obtained a new ID card from the police if he was fearful of the police. He responded that the people who were organising his trip, arranged for him to travel to [Country 3] as a tourist. He departed Vietnam on his passport, with his ID card.

   u.He wants to stay in Australia and have all the freedoms here and abide by all Australian laws. He has had no chance to see his children. His mother is [age] years old and he has no chance to go back and visit her.

   v.The applicant’s Agent emphasised that there have been long periods of time between the stages of the applicant’s Protection visa application. The events in his claims started ten years ago. It is difficult for him to recall them now, especially considering the trauma he’s been through and the very long time for the decision making process. He was in detention a year before he was invited to apply for a Protection visa. It would be highly unusual if the applicant could phrase his claims in the same way as then. It should be expected that his account contains some minor inconsistencies.

   w.The applicant’s Agent submitted that the latest DFAT report supported the applicant’s case.  DFAT states that local police target political activists and others including religious worshippers considered undesirable, and that the police operate with little transparency, and abuse their powers.  The report also states that Catholics in remote areas who practice at unregistered churches have problems. Their information also matches the applicant’s claims regarding the events on his sister’s property.

   x.The applicant’s Agent submitted that an 11 June 2017 article in the Sydney Morning Herald described the situation for people pushed back to Vietnam by the Australian authorities, who then fled to Indonesia and were accepted as refugees by the UNHCR.  This indicates there should be no confidence in the MOU between Australia and Vietnam.

   y.The applicant’s Agent submitted that the 2016/17 Amnesty International report spoke of surveillance by the Vietnam authorities, including of surveillance of the unregistered churches. The Tribunal put to the applicant and his Agent that the applicant was not claiming to have belonged to an unregistered church in Vietnam. The applicant’s Agent agreed with this but stated that the applicant has been involved in activities critical of the government and the authorities would know he has sought asylum in Australia.

   Post-Hearing Submission, 4 August 2017

1. The applicant’s Agent sent a written submission to the Tribunal on 4 August 2017. The following are relevant excerpts from the submission:

   Reports – Supporting information

   3 “DFAT Country Information Report – Vietnam”, 21 June 2017, Department of Foreign Affairs
   and Trade, at page 22 (emphases added):

   Police
   5.4 Internal security is the responsibility of the Ministry of Public Security, although the
   military maintains public order in the event of civil unrest in some remote areas. Police
   organisations exist at the national, provincial, district and local levels, and are subject to the authority of people’s committees at each level. The police are generally effective at maintaining public order. The Ministry controls the police, a special national security
   investigative agency, immigration and other internal security units. Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.

   5.5         The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice police organisations operate with significant discretion and little transparency. The Vietnamese law enforcement agencies are highly efficient in controlling public disturbances and communal violence. However, other police capabilities, including many investigative capabilities, remain limited and training and resources are inadequate to meet current and emerging transnational crime issues facing Vietnam and the broader region.

   4 “DFAT Country Information Report – Vietnam”, 21 June 2017, Department of Foreign Affairs and Trade, at page 13 (emphases added):

   3.13 DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion (see Political Activists for further information).

   5 “DFAT Country Information Report – Vietnam”, 21 June 2017, Department of Foreign Affairs and Trade, at page 24 (emphases added):

   5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay
   overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
   ....
   5.17 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 illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.

   6 The above-cited “DFAT Country Information Report – Vietnam”, 21 June 2017, Department of
   Foreign Affairs and Trade, at page 24, fails to acknowledge that some of those individuals
   returned by Australia to Vietnam since fled again and are now UNHCR mandated refugees in
   Indonesia. It is submitted that this is evidence that Australia is responsible for refoulement of
   those individuals, and therefore the MOU and DFAT Country Information Report rationale for
   safe return of failed asylum seekers to Vietnam is not based on evidence. Refer to the attached report: "Turned back by Australia, Vietnamese recognised as refugees in Indonesia", Sydney
   Morning Herald, 11 June 2017, ["Turned back by Australia, Vietnamese recognised as refugees in Indonesia", Sydney Morning Herald, 11 June 2017,
   viewed at: which includes that:

   “Despite their assurance that refugees would face no sanctions or retributions for leaving the country, the government of Vietnam continues to jail, beat, torture and prosecute refugees returned to them by the Australian government," Canadian senator Thanh Hai Ngo said. "The occurrence of these violations of basic human rights and civil liberties are at the core of why many are choosing to flee and are well known by the Canadian and Australian governments.

   7 Surveillance of and state sanctioned violence against those deemed anti-regime in Vietnam is
   widely reported, including in these reports:

   a.“Viet Nam 2016/2017”, Amnesty International (emphases added):

   Repression of dissent
   Peaceful criticism of government policies continued to be silenced through judicial and extra-legal means. There was extensive surveillance and harassment of activists, including those who demonstrated against the Formosa ecological disaster which affected the lives of an estimated 270,000 people. [“Viet Nam 2016/2017”, Amnesty International, refer to: Events of 2016, Human Rights Watch (emphases added):

   The Communist Party of Vietnam (CPV) in 2016 maintained its control over all
   public affairs and punished those who challenged its monopoly on power. Authorities restricted basic rights, including freedom of speech, opinion, association, and assembly. All religious groups had to register with the government and operate under surveillance. Bloggers and activists faced daily police harassment and intimidation, and were subject to arbitrary house arrest, restricted movement, and physical assaults. Many were detained for long periods without access to legal counsel or family visits. The number of bloggers and activists known to be convicted and sentenced to prison almost tripled from the previous year, from 7 to at least 19.
   ....
   State Violence against Activists, Dissidents, and Criminal Suspects
   There were frequent physical assaults against human rights bloggers and campaigners at the hands of anonymous men who appear to be acting with state sanction and impunity. During the first seven months of 2016, at least 34 people— including children—reported that unknown assailants beat them.
   ....
   Freedom of Religion
   The government monitors, harasses, and sometimes violently cracks down on

   religious groups that operate outside official, government-registered, and government controlled religious institutions. Authorities subject to intrusive surveillance unrecognized branches of the Cao Dai church, the Hoa Hao Buddhist church, independent Protestant and Catholic house churches in the central highlands and elsewhere, Khmer Krom Buddhist temples, and the Unified Buddhist Church of Vietnam. [“Vietnam Events of 2016”, Human Rights Watch: Further, on research of reports about Vietnamese returnees from [Country 2], it seems apparent that reports about individuals returned around the time [the applicant] was returned to Vietnam from [Country 2], refer to victims of syndicates. It is submitted that those reports are not relevant to [the applicant’s] situation.

   Photographic records of activities in Australia

   9 [The applicant] provides the attached photographs, and instructs that these photographs were all taken [in] April 2017, at Canberra ACT, in commemoration of the fall of Saigon,
   South Vietnam, on 30 April 1975, to the communists of North Vietnam. The protests took place
   in three stages, as follows:

   a.Photographs 1-4: in front of the Vietnamese Embassy;

   b.Photographs 5 and 6: in front of the Chinese Embassy to protest against China’s occupation of Vietnamese land and islands; and

   c.Photographs 7-9: at the Monument of the War Memorial commemorating the victims of the Vietnam war.

   10 Note the flag flying and scarves worn at the protests – yellow with three horizontal red stripes – are the colours used by Viet Tan, the flag of South Vietnam before the fall of Saigon on 30 April 1975. Refer attached report: "South Vietnam flag still flies high", Asia Times, 23 July 2017. ["South Vietnam flag still flies high", Asia Times, 23 July 2017, 

   Written Submission, 14 August 2017

2. The applicant’s Agent made a further written submission, received by the Tribunal on 14 August 2017:

   “[The applicant] instructs that in a video that can be viewed at: ​[link]  [The applicant] appears from approximately [time] to [time] minutes.

   This video was taken [in] April 2017 at the protests organised by the Vietnamese Community in Australia that [the applicant] participated in.

   The protests started with the colour salute ceremony in front of the War Memorial Monument in [another location] before the journey to Canberra where the protest took place in front of the Vietnamese Embassy, then in front of the Chinese Embassy, and ended at the Vietnam War Memorial Monument at Canberra. 

   This is provided to the Tribunal as evidence of [the applicant’s] political activity against the current regime and government of Vietnam.”

3. Attached to the submission are several photographs of the applicant at a demonstration in Australia, showing participants and the applicant dressed in the colours of the South Vietnam flag and bearing South Vietnamese and Australian flags.

4. The Tribunal viewed the [video] identified in the Agent’s submission. It is of a large protest in Canberra, as described by the applicant’s Agent. While the Tribunal was not able to discern the presence of the applicant in the initial several minutes from the [time] mark (or earlier) given the size of the crowd and the movement of the footage, he was very visible for a few minutes near the end of the designated segment.  In this part of the video he is being filmed in a [group], standing next to a man being [interviewed]. The applicant is dressed in [clothing items] with the colours and logo of the Yellow South Vietnamese flag.

   Country Information

5. DFAT’s  ‘Country Information Report, Vietnam’, published on 21 June 2017, contains the following excerpts:

   Catholics

   3.9 Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.

   3.10 DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.

   Unregistered churches
   3.11 Credible in-country contacts and human rights advocates reported that several parishes in remote areas with majority ethnic minority congregations faced difficulty registering churches. Local authorities often ignored, or were unaware of, national laws with respect to church registration. The US Department of State’s international religious freedom report for 2015 reported the case of 22 unregistered Catholic house churches scheduled for demolition in the Central Highlands province of Kon Tum in 2015. The demolition was halted following involvement by the church leadership, after which authorities and the church entered into dialogue regarding construction of new worship facilities.

   3.12 In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.

   3.13 DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion.

   …

   POLITICAL OPINION (ACTUAL OR IMPUTED)

   3.20 Article 4 of Vietnam’s Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, with very few formal avenues for political participation. Only two self-nominated candidates in the National Assembly Elections of 22 May 2016 were elected out of a total of 496 elected candidates.

   3.21 Vietnam’s Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration; however, these are restricted by a number of ‘national security’ provisions within Vietnamese law. In practice, the Government does not tolerate political expression against the CPV, the Government or its policies. On 9 June 2016 the European Parliament adopted resolution 2016/2755(RSP) on Vietnam that called upon the Government to put an immediate stop to all harassment, intimidation, and persecution of human rights, social and environmental activists. It insisted that ‘the government respect these activists’ right to peaceful protest and release anyone still wrongfully held’.

   Political Activists

   3.22 The Government has used specific laws to curb dissent, such as Article 79 of the Penal Code (‘overthrowing the State’), Article 88 (‘conducting propaganda against the State’) and Article 258 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’), all of which in practice take precedence over constitutionally enshrined rights. These offences carry penalties ranging from prison sentences of between six months and 20 years; to life imprisonment or capital punishment. DFAT is not aware of any recent cases of the death penalty being applied for political activities.

   3.23 DFAT is aware of at least 19 reported convictions of political/human rights activists in 2016. The convictions resulted in a total of more than 70 years in prison for the abovementioned offences, as well as the use of Article 245 of the Penal Code (‘causing public disorder’) and Article 87 (‘undermining national unity’)

   3.24 Increased suppression of political activism generally coincides with high-level events, such as the lead up to the National Party Congress, National Assembly Elections, and with other significant issues affecting the country, such as the South China Sea disputed territories and the mass fish death crisis in April 2016.

   Leaders and Organisers

   3.25 Political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities; however, the treatment from authorities generally depends on the individual’s level of involvement. The US Department of State’s Country Report on Human Rights Practices for 2015 highlighted the arrest and detention of former prisoner of conscience and democracy activist Tran Anh Kim, formally charged in October 2015 under Article 79 of the Penal Code (seeking to overthrow the government). Police in Thai Binh Province reportedly detained Kim and his associate Le Thanh Tung on 21 September, ‘the day he had planned to inaugurate a new political organization, National Forces Raising the Democratic Flag.’ On 16 December 2016, Mr Kim and Mr Tung were sentenced at trial to 13 and 12 years in prison respectively. The court also ordered that both men serve four years of house arrest once released from prison.

   3.26 A number of incidents involving the prosecution of prominent activists for political dissent were reported in 2016, including:

   - On 23 March 2016, prominent blogger, Party member and former public security official Nguyen Huu Vinh (also known as Anh Ba Sam) was sentenced to five years in prison, accused of publishing anti-state information and charged under Article 258. Vinh was arrested in May 2014, together with a colleague, Nguyen Thi Minh Thuy, and has been in custody since his arrest. Ms Thuy was sentenced to three years in prison at the same trial in March 2016. Their appeal was rejected by a panel of judges at the People’s High Court in Hanoi on 22 September 2016.

   - On 23 August a court in the central province of Khanh Hoa sentenced two men to up to three years in prison for spreading anti-state propaganda (Article 88) through one of the men’s Facebook accounts. The case has been reported by human rights organisations as a reminder of the CPV’s strong desire to control all political discourse. Nguyen Huu Quoc Duy and his cousin, Nguyen Huu Thien An, were given sentences of three and two years respectively, in a one-day closed trial. According to Radio Free Asia, the court statement said the men ‘deliberately distorted the Government's policies and that they explicitly called for the overthrow of the state’ in 12 articles posted on Facebook.

   - On 20 September 2016 a leading land rights activist, Ms Can Thi Theu, was convicted under Article 245 (causing public disorder) and sentenced to 20 months in prison. Police forcibly removed more than 50 supporters from outside the courthouse during her trial. Ms Theu was arrested in June 2016 for protesting government-ordered land evictions from Duong Noi village near Hanoi. The Government reportedly plans to use the village for a commercial development. On 30 November 2016 an appeals court in Hanoi upheld her conviction of 20 months in prison.

   - On 10 October 2016 prominent blogger, Ms Nguyen Ngoc Nhu Quynh (alias Mother Mushroom), was arrested and charged under Article 88 of the Penal Code (propaganda against the state), facing up to 20 years in prison. This was the first arrest under a national security provision for 2016. Mother Mushroom regularly wrote about political reform, land confiscation and police brutality, voiced her support for fellow dissidents and publicly campaigned for the release of many political prisoners. She had been subject to regular police surveillance and interrogation, and prevented from attending numerous events and meetings with foreign embassies and organisations.

   3.27 DFAT assesses that individuals who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, prevented from leaving their homes and/or attending meetings and events. They have also reportedly been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.

   Supporters and protesters

   3.28 Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.

   3.29 DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.

   …

   4.9 In practice, there are reports of mistreatment of suspects during arrest and detention. An Amnesty International report published in July 2016 documented several cases of torture and physical abuse of prisoners of conscience by police and prison officials.

   4.10 There were reported cases of individuals beaten to extract a confession, although specific numbers are difficult to ascertain due to a lack of transparency.

   4.11 Vietnamese law allows the Government to detain people without charge under ‘national security’ provisions. There are credible reports of the Government arresting and detaining individuals indefinitely, with activists across the country also being subject to administrative detention or house arrest. Access to legal representation is granted inconsistently, with people held on national security charges reporting irregular access to legal counsel, or denied altogether.
   …

   Detention and Prison
   5.9 The prison population in Vietnam is approximately 136,759 as at 1 July 2016, approximately 121,625 males and 15,134 females. This is a similar prison population rate as Australia. Around 12 per cent of the Vietnamese prison population are pre-trial detainees, around half the rate for Australia. According to the Ministry for Public Security, 427 inmates are foreigners most commonly incarcerated for drug offences.

   5.10 Prison conditions in Vietnam are considered harsh but generally not life-threatening. There are reports of a lack of quality food and water, and of poor sanitation. Information on prison conditions is limited due to a lack of transparency. Deaths in custody are predominantly caused by serious health conditions that can be exacerbated by insufficient or delayed medical care, poor sanitation, and malnutrition. Between 1 July 2011 and 30 June 2016, MPS reported 12,246 cases of tuberculosis and 71,036 cases of HIV within the prison population. There are credible reports of deaths caused by lethal force by authorities. Prisoners held on politically-related crimes are generally kept separate from other inmates, and there are credible reports that these prisoners are housed with dangerous criminals as a punitive measure and an effort to discourage further activism. Political prisoners are also reportedly routinely denied access to medical care.

   …

   5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.

   …

   5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.

   5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.

1. In 2016 the Daily Telegraph in Australia reported the following:

   A City council is under pressure from Vietnamese and Australian authorities not to fly a political flag. A push for the City of Yarra to fly the non-communist flag risked jeopardising economic, trade and education co-operation between Vietnam and Australia, the Vietnamese Government has warned. The council will tonight vote on a request to display the so-called Yellow Flag of the former South Vietnamese government which was defeated in the Vietnam War. Vietnamese community leaders want the flag to fly above Collingwood and Richmond town halls on Vietnamese Veterans Day on June 19 annually. In a letter, the Socialist Republic of Vietnam’s embassy in Australia urged the council “take strong measures to prevent the motion from being realised”.[15]

   [15] Daily Telegraph, 2016, ‘Vietnam protest over council flag request’, 23 August,

2. The recent Asia Times article, referred to by the applicant’s Agent in her last submission, states as follows:

   Vietnam's bid to pressure Australia into banning the flag shows how sensitive the symbol remains more than 40 years after the fall of Saigon.

   Buried at the bottom of a detailed account of Prime Minister Malcolm Turnbull’s trip to the G-20 Summit were a few lines on his meeting with Vietnam’s Prime Minister Nguyen Xuan Phuc. Though Vietnam is not a part of the G-20, a grouping of the top 20 economies in the world, Phuc and other leaders travelled to the event for meetings on the sidelines. “In his discussion with Prime Minister Nguyen Xuan Phuc, the Vietnamese leader raised concerns about five local councils in Australia that reportedly support the flying of the ‘yellow’ flag, which was the flag of the former government of South Vietnam,” reported Fairfax media. “Mr Nguyen asked Mr Turnbull to exert his influence and stop the practice.”
   How Turnbull responded to this request in their private bilateral is not known. Like the United States, Australia has been asked to repress the flag before but it still flies freely in many areas of the country where Vietnamese diaspora have settled, many of them refugees from the country previously known as the Republic of Vietnam.

   Though an evergreen issue with Hanoi’s communist-led government, not much has been said about it in recent years, especially as new generations of young overseas Vietnamese return to start businesses and repair ties.

   Vietnam’s government has long tried to quash the old flag flown by its diaspora in remembrance of the country’s previous division between capitalism and communism, so far to little avail. US freedom of speech laws mean it cannot be banned there.

   … The well-organized and politically vocal community in California, whose older generation leans strongly Republican, flies the flag at various community events. Banned inside Vietnam, pro-democracy groups like Viet Tan also hoist the flag at their overseas events calling for political change. Vietnam War veterans also display it during commemorative events.

   … While allowed at the small council level, Canberra firmly forbids the VCA from bringing the flag to official events in the capital. The Hanoi government regards the flag as illegal and it is strictly banned within Vietnam.

   Vietnam’s attempt at political inference might seem unusual for Australia, which more often worries about Chinese political influence or meddling in its domestic affairs. … However, Hanoi also has a long history of keeping tabs on Vietnamese refugee communities that settled in the West after the war, as documented vividly in Viet Thanh Nguyen’s Pulitzer Prize-winning novel The Sympathizer.

   … Vietnam has recently launched yet another harsh crackdown on its dissidents, sentencing several to prison terms for their political opinions. Communist authorities view the flag and the people who fly it overseas as linked to campaigns aimed at undermining or even toppling its rule.

   The VCA [Vietnamese Community in Australia] is regarded with suspicion in Hanoi and its members and associates are firmly banned from returning to Vietnam. Indeed, they are often turned back at the gates of Ho Chi Minh City’s airport upon landing.

   Last year the VCA organized large protests in Australian cities against the Vietnamese government’s handling of the Formosa pollution scandal, viewed as one of the country’s worst ever environmental disasters.[16]  [emphasis added]

   [16] Asia Times, 2017, ‘South Vietnam Flag Still Flies High’, 23 July,

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. On the basis of the applicant’s oral evidence and copies of Vietnamese identity documents he submitted, the Tribunal is satisfied the applicant is a citizen of Vietnam. The Tribunal assesses the applicant’s claims against Vietnam as his country of nationality and receiving country.

   Credibility

   Catholic faith

4. The applicant gave sufficiently detailed and consistent evidence about his Catholic faith in both Vietnam and Australia. The Tribunal accepts that the applicant is a practicing Catholic.

   Confrontation over sister’s house construction and ensuing problems

5. The applicant gave conflicting statements about when the incident with the authorities at his sister’s land occurred.  In his initial written Protection visa application he stated the incident occurred in August 2008, however later in the statement it was written that it occurred in 2006.  During his interview with the Department delegate he stated it was in August 2006.  Later in the interview he confirmed it was in August 2008.  In his written Statutory Declaration to the Tribunal and in his Tribunal hearing he stated the incident occurred in August 2007.  In his Protection visa application and Form 80 he also wrote that he had moved to Lam Dong, away from his village, in December 2006.  When the inconsistencies were put to him he stated it was due to Interpreting and his own mistakes.  The Tribunal finds his explanations do not account for the number of times his statements about the year of the incident and his place of residence vary.  The applicant was also unable to state how old he was when the incident occurred, even approximately. He also stated that the incident occurred during his [final] year of school whereas in his Protection visa application it is written that he completed Year [grade] of school.  The Tribunal considers that the applicant’s lack of clarity regarding the year, and his age, when the incident occurred, is not supportive of it being a genuine event.

6. Nevertheless the Tribunal considers that the applicant’s evidence regarding a dispute between his sister and the authorities about the construction of a house on their land is otherwise plausible.  The Tribunal considers his lack of clarity about when this occurred is more a result of his own lack of involvement in the incident rather than it not occurring at all. The Tribunal therefore gives the applicant the benefit of the doubt that there was a dispute between the applicant’s sister and the local authorities over the construction of her house on family land, in the mid or late 2000s, and that the house being constructed was either wholly or partly demolished by the authorities at the time. The Tribunal also accepts the applicant’s evidence that his sister eventually prevailed with the support of the parishioners to complete the construction of her house and that she and her family are currently living there, with no further problem.

7. The Tribunal found the applicant’s description of his involvement in the dispute inconsistent and confused. In his written statement with his Protection visa application and during his Departmental interview, he refers to two police officers being injured in the confrontation over the house construction. However at his Tribunal hearing he stated only one police officer was injured. When the inconsistency was put to him he did not explain it but merely repeated only one officer was injured. He later stated that his earlier statements were mistaken as a result of his poor emotional state at that time.  Given the long period over which he clearly maintained it was two police officers injured the Tribunal does not see how his emotional state would cause him to repeatedly mistake a central fact in his claim. Further, when asked at this hearing who was present when the applicant arrived at his sister’s property he clearly stated her husband was there.  He then had to contradict this statement to explain why her husband had not intervened to help his sister when she was pushed by the police.  The applicant also described the struggle between the parishioners and the police lasting two or more hours, in which the police used electric sticks to beat the parishioners.  When asked why more people were not injured he then changed his evidence to state the struggle lasted a short time then there were verbal arguments before a resumption of the fighting.  In view of these inconsistencies the Tribunal finds the applicant’s evidence unreliable and it does not accept that the altercation with the police occurred as claimed.

8. The Tribunal found the applicant’s evidence about his arrest and release implausible and confused.  The applicant described a large gathering in which many villagers fought with and opposed the police to try to stop them demolishing his sister’s house, yet only he, and possibly his sister, was arrested. The applicant was also not able to reasonably explain why he was not arrested at the time the police were injured, despite the police believing he was the attacker, and why they waited up to two or three hours later to arrest him.  He also gave evidence several times that the police believed him to be the one who assaulted the police officer or officers, yet he was released and not charged with any assault. He gave further confused evidence about the police continuing to detain and interrogate him about who injured the police, over his next several years in Vietnam, despite the police believing he was responsible.  He further contradicted this evidence by stating that he was not interrogated any more by the police about the incident but they would summon him to attend the police station and he would never present himself.  The applicant’s Protection visa application written statement also refers to the arrest of the applicant’s sister at the incident. He further repeated this at his Departmental interview.  However at his hearing he maintained that his sister was not arrested and gave vague evidence about her simply going to the police station to discuss work or construction permission with the police. The Tribunal finds these inconsistencies significant and that they undermine the credibility of the applicant’s claimed arrest. In view of the vagueness and contradictions the Tribunal considers that the applicant has fabricated his evidence about being arrested and accused of injuring a police officer, or officers, at his sister’s property.

9. The applicant stated at hearing that he was singled out for arrest because he participated in parish activities. When asked to describe these activities he gave a generalised and vague response that they were candlelight prayers and demonstrations against the authorities. He further stated that the authorities noticed him doing these things but had insufficient evidence to arrest him. The Tribunal does not accept that the authorities would have insufficient evidence against a person observed to be participating in something considered unlawful.  The Tribunal also does not accept that the applicant would be of any particular interest to the authorities as one of a number of vigil holders or demonstrators in his Catholic village. The Tribunal notes finally that the applicant made no mention of any participation in candlelight prayers and demonstrations against harassment by the authorities in his Protection visa application statement, and that he only referred to assisting his local church [group]. The Tribunal finds the applicant’s evidence and responses lacking in consistency, detail and plausibility. It does not accept he was involved in any anti-authoritarian activity in Vietnam or that he was singled out for arrest for this reason.

10. The Tribunal found the applicant’s evidence about the aftermath of the incident similarly inconsistent and confused. In his Protection visa application statement he referred to being attacked and badly injured by the authorities on his way home from school, so that he went to [Country 1].  The Tribunal can discern no plausible reason why the authorities would attack and badly injure a schoolboy. If, as the applicant stated, it was because they believed he had injured the police officer or officers then it makes no sense that he was not charged with any such offence. The Tribunal also notes that the applicant completed his year of school and waited until early 2008 to travel to [Country 1]. The Tribunal find this delay does not support the applicant’s claim to have gone there out of concerns for his safety.  Further, the applicant claimed to be in [Country 1] because of his fear of the authorities in his village yet regularly returned to his village for several weeks each few months to be with his parents. He gave further inconsistent evidence in his Statutory Declaration stating that it was ‘Lam Dong’ he fled to following the attack upon him, not [Country 1].  During his hearing he also referred to going to Lam Dong for construction work when he completed his schooling.  In contrast to his written statement the applicant stated at hearing that he was attacked on his way to school “very often”, not just once. When the Tribunal asked for clarification he then stated it was several times but he was not beaten very hard as [number] or so of his school friends would come to his assistance.  The Tribunal considers these responses add further implausibility and inconsistency to the applicant’s evidence.  The Tribunal considers the concerns as set out, significantly undermine the applicant’s claims to have been attacked and injured by the authorities and that he was fearful for his safety in his village. The Tribunal does not accept these claims.

11. The applicant also referred in his Protection visa application statement and his Statutory Declaration to the Tribunal, that the local authorities tried to stop him going to church. However he contradicted this at hearing to state that the authorities did not do anything to stop him going to church.  When asked further about this he then stated the authorities tried to stop him going to other parishes for activities and that they did this by encouraging the non-Catholic residents to make a barrier along the way to the various parishes. This response introduces further contradictions as he had previously stated that all of the villagers in his village were Catholic.  The Tribunal does not accepts that the authorities or anyone else tried to stop the applicant attending church in his area or in other parishes.

12. In his Protection visa application statement the applicant referred to returning to his home village for his brother’s wedding in June 2009 and being told by a friend that the authorities planned to target him at the wedding, causing him to flee back to Lam Dong.  However at his hearing he stated that his brother’s wedding was in Lam Dong in June or July 2009, that he was present there, and that the police followed him daily. When the contradiction was put to him he stated that his brother had a second wedding in the village.  The Tribunal considers this response was invented by the applicant with no apparent basis in fact. The Tribunal finds the inconsistency significant and does not accept that the applicant returned to his village for his brother’s wedding where he was advised the police planned to target him. The Tribunal also does not accept that the applicant was followed daily by the police in Lam Dong at the time of his brother’s wedding, given these contradictions and because of the lack of any reason for them to do so in a place over 1,000 km distance from his home village.

13. In his Protection visa application statement the applicant referred to being attacked by thugs in Lam Dong sent by the Lam Dong police, in June or July 2009.  As acknowledged by the applicant Lam Dong is far from the applicant’s village, over 1,000 kilometres away. The Tribunal does not accept that the police in Lam Dong would have any interest in sending thugs to attack the applicant there, because of an alleged incident in his home village in 2007.  The applicant also provided inconsistent evidence about this attack during his Tribunal hearing, stating that it occurred on his way back to Lam Dong, not in Lam Dong. The Tribunal does not accept the applicant was attacked by thugs in Lam Dong or on his way to or from Lam Dong.

14. In his Protection visa application statement the applicant refers to being in church in [the] district in July 2009 when the authorities came with tanks and troops and threatened to harm the congregants. He further claims he escaped but believed he was followed by the authorities because he had previously assisted his local church [Group] and had been warned to stop his association with the church. He substantially contradicted this evidence at his hearing on 24 July 2017 in which he stated that it was a candlelight prayer he attended in [District 1] and that nothing happened during the ceremony there. The Tribunal asked him to confirm his response and he confirmed nothing had happened.  When his Protection visa application statement regarding the arrival of tanks and troops was put to him he then stated that this did occur but it was after the ceremony. The Tribunal does not accept that the applicant would not initially refer to something so significant as the arrival of tanks and troops during his time at the [District 1] church in his description of the incident at hearing, if this had occurred.  The Tribunal does not accept that tanks or troops did arrive while he was at the church in [District 1].

15. While the Tribunal accepts the applicant may have been present at the church in [District 1] it does not accept that the applicant was followed from the church by the authorities. The Tribunal finds the applicant’s evidence that he was followed to the intersection with [Village 2] but not followed into [Village 2] lacking in sense and plausibility. The Tribunal does not accept that government troops or authorities in another area would have any interest in the applicant or any knowledge of his past or current activities in his home area. The Tribunal also does not accept that the applicant’s past involvement with his [local] Group would cause any adverse reaction from the authorities to cause them to follow him from [District 1]. 

16. In his Protection visa application statement the applicant refers to marrying his wife in Lam Dong, and to her returning to his village for a marriage certificate, alerting the authorities to his whereabouts, and causing him to leave to [Country 2].  However he presented a note from his parish which stated that he and his wife married in [the] parish (in Nghe An province). He also confirmed in his Statutory Declaration that they married in [the] parish. In his hearing he stated that they married in [Village 1] and that they lived there together until he went to [Country 2] in March 2011. At his hearing he stated that both he and his wife went to his village authorities for their marriage certificate at a time while they were both living in the village. When asked about his previous evidence he then changed his evidence to state he went there with his wife but waited outside the office while she obtained the certificate for him to sign.  In view of these substantive inconsistencies the Tribunal does not accept that the authorities were alerted to the applicant’s whereabouts when his wife travelled to his village to obtain a marriage certificate.  The applicant also confirmed that he went to [Country 2] when he did because his new in-laws were able to facilitate his travel there. The Tribunal does not accept that the applicant travelled to [Country 2] because of any concerns for his safety in Vietnam.

1. In his Protection visa application statement the applicant refers to being detained in Vietnam for one month after his deportation from [Country 2]. After discussing the applicant’s claims regarding problems arising from the incidents in his home village the Tribunal asked him if he had had any other problems in Vietnam. He responded only that he felt he was followed by the authorities. The Tribunal asked him again if he had any other problems in Vietnam and he then responded that he had difficulty obtaining identity documents so had to seek the services of others. It was not until late in the hearing that the applicant spoke also of being imprisoned and tortured for one month in December 2012. Given this was the most recent and serious incident that occurred the Tribunal finds the applicant’s lack of initial mention of it concerning.  The Tribunal does not accept the Vietnamese authorities would have any adverse interest in the applicant because he went to, and was returned from, [Country 2]. He travelled to [Country 2] from Vietnam without any interest or hindrance from the Vietnamese authorities. There is no plausible reason why they would detain him for one month or why they would torture him on his return form [Country 2]. As put to him the country information[17] regarding the situation of Vietnamese workers deported from [Country 2] at the time, depicted them as victims, with no indication of any adverse interest or repercussions to them from the Vietnamese authorities.  The Tribunal also finds significant the contradiction in the applicant’s evidence at his hearing on 24 July 2017 regarding this claimed detention in Hanoi, in which he denied being tortured or beaten during his imprisonment. In view of these concerns the Tribunal does not accept the applicant was jailed in Hanoi by the Vietnamese authorities on his return from [Country 2] or that they tortured him.

   [17] [Source deleted.]

2. In his Protection visa application statement the applicant refers to being summoned by the local village authorities to attend the police station, beaten and interrogated, after his deportation from [Country 2], and that a court case about the former incident was opened against him. However he also gave evidence of being frequently away from his village from 2008 onwards, and that he departed Vietnam to [Country 2] lawfully.  The Tribunal does not accept the local village authorities would have any interest in the applicant’s travel to [Country 2] or anywhere else. The Tribunal also does not accept the authorities would open a case against the applicant for an incident that occurred several years ago. The applicant later contradicted his evidence that any case was opened against him in Vietnam.  In view of the plausibility concerns and inconsistency the Tribunal does not accept that the applicant was summoned to the local police station, or beaten, or that a case was opened against him, after he returned to his village from [Country 2].

3. In his Protection visa application statement the applicant refers to being considered a political dissident in Vietnam but provided no further details. When the Tribunal asked him about his activity in Vietnam he spoke of participating in demonstrations against the government such as protests against illegal land acquisitions and participation in group prayers. He was unable to state how many times he had been involved in such activity. He also stated that the last time he participated in a demonstration against the government was probably in September 2010 at [District 1]. When asked why he made no mention of them in his Protection visa application statement he responded it was because he feared the information would be leaked. The Tribunal can discern no difference between the nature of this information and that of his other claims involving confrontations with the authorities. In view of the applicant’s initial omission of this information together with his lack of detail the Tribunal does not accept that the applicant had any anti-government or dissident activity in Vietnam. The Tribunal also does not accept the applicant is considered a political dissident in Vietnam.

4. Both the applicant and his Agent attributed the inconsistencies in his evidence to his emotional state, trauma, and memory deterioration caused by his detention in Australia and the length of the Protection visa application process. The Tribunal accepts that length of time and the suffering caused by being detained as an asylum-seeker in Australia could readily affect a person’s memory.  However the inconsistencies went to core details of the applicant’s claims and were not simply minor ones. The Tribunal found the applicant’s presentation of his claims would change markedly to try to adjust to contradictory information put to him, so that here was very little indication that the applicant was recalling genuine events. Given the substantive nature of the inconsistencies, the Tribunal does not accept that the applicant’s emotional state, trauma, or the passage of time satisfactorily explain the overall poor quality of the applicant’s evidence.

   Religious activity in Australia

5. The applicant provided reasonably detailed evidence about his involvement with the Catholic church in Australia. Other witnesses have also confirmed his involvement such as being in the church choir. The Tribunal accepts the applicant has been attending the Catholic church and participating in church activities and the Catholic community in Australia.

   Political activity in Australia

6. In his Statutory Declaration and other written material submitted to the Tribunal the applicant referred to involvement in political activity in Australia. He described this as participating in demonstrations outside the Vietnamese Embassy and fund-raising for the pro-democracy group ‘Bloc 8406’. A witness confirmed in writing that the applicant had participated in one public demonstration [in] April 2015 in front of the Vietnamese Embassy in Canberra and that he had attended a Remembrance Day event for the fall of Saigon [in] April [2015].

7. The Tribunal put to the applicant at hearing that it had not located any information regarding a protest in front of the Vietnamese embassy in Canberra [in] April 2015. The applicant maintained that he had attended such a protest and produced photographs, file [dated] April 2015, of the protest from his mobile phone. On the basis of the evidence he submitted the Tribunal accepts that the applicant did attend this protest as described, and that it was not reported in the English-language media sources consulted by the Tribunal.

8. The applicant submitted photographs and a video link showing him participating in another protest at or near the Vietnamese embassy in Canberra in April 2017. The Tribunal accepts he participated in this demonstration as claimed. 

9. The applicant presented contradictory evidence regarding some of his political activity in Australia, initially stating that he had attended a commemoration [in] April 2015. When asked again about this at his Tribunal hearing on 31 July 2017 he denied he had attended this event.  In view of this inconsistency the Tribunal does not accept that the applicant attended a Vietnamese commemoration [in] April 2015.

10. The applicant gave a vague and contradictory account of the political organisation he claimed to support in Australia. In the information presented to the Tribunal, prior to his hearing, including his Statutory Declaration signed three days before the hearing, he claimed to be involved with the organisation called ‘Bloc 8406’. However at his hearing on 5 May 2017 he stated that ‘Viet Tan’ was the only political organisation he had involvement with in Australia and that he had been involved with them for over a year.  When then asked why he had previously referred to being politically involved with Bloc 8406 in Australia he made very hesitant and confused statements about writing this because he knew Bloc 8406 was involved with human rights, eventually stating he was involved with them for a few months, or for a year, before switching to Viet Tan. He provided no explanation, apart from being mistaken, as to why he had named Bloc 8406 as the political organisation he had involvement in, in his Statutory Declaration of [May] 2017.  Given these significant contradictions and his vagueness the Tribunal does not accept the applicant has had any involvement with the organisation Bloc 8406. 

11. The Tribunal also does not accept he has any formal or direct involvement with the Viet Tan in Australia. However the Tribunal does accept that the Viet Tan organisation and its members would have also participated in the demonstrations attended by the applicant in Australia, and that he may have some informal association with them on this basis. 

12. During his hearing the applicant described his political activity as attending demonstrations and fundraising by buying a dinner ticket and selling soup, to send money to Vietnam. The Tribunal accepts he has done this activity. However given his lack of truthfulness regarding his involvement with political organisations in Australia, and the vagueness and generalisation in his responses when asked about the political nature of his activity and the organisations he named, the Tribunal is not satisfied that he has undertaken these activities for overtly political reasons. The Tribunal is of the view that the applicant engaged in these activities partially to strengthen a refugee claim. However the activities he engaged in also appear to have a significant social and communal aspect, in that they are gatherings of the Vietnamese community in Australia with an additional charitable focus regarding the general welfare of Vietnamese and others in need. The photographs submitted by the applicant also evince a social and cultural aspect to his activity. The Tribunal is therefore satisfied that the applicant has personal socio-communal motives for his engagement in the activity, in addition to a desire to strengthen his refugee claim. The Tribunal is therefore not bound to disregard this activity under s.91R(3) of the Act.

    A18 Visit

13. There are available reports and letters to confirm that officers from the Vietnamese A18 Police force visited the immigration detention centre in Australia while the applicant was held there and speak to some Vietnamese detainees. The Tribunal accepts they did so visit. The applicant has stated that the A18 officers did not interview him, meet with him, or indicate any interest in him. The Tribunal also accepts this.

    Data Breach

14. The Tribunal accepts the applicant was in detention at the time of the Department’s ‘data breach’, and that the information temporarily publicly available on the Department’s website included biographical detail about the applicant, and that he was in immigration detention.

    Fear of Harm in Vietnam

    Catholic

15. The Tribunal has accepted that the applicant is a practicing Catholic, in Vietnam and Australia.

16. The Tribunal has not accepted that the applicant was arrested and detained in Vietnam as claimed.  The Tribunal has not accepted he was engaged in any anti-government activities in Vietnam. The Tribunal has not accepted the applicant was prevented or obstructed from, or harassed, going to school or church or anywhere else in Vietnam.

17. The available information, including the reports submitted by the applicant, shows that Catholics involved in activities considered anti-government can be arrested, imprisoned and otherwise seriously mistreated in Vietnam.

18. However the available country information shows that the millions of Catholics in Vietnam are able to practice their faith safely there as long as they avoid involvement in anti-government activity.  On the accepted evidence the applicant has not been involved in anti-government activity in Vietnam.  The Tribunal finds that he can continue to practice his Catholic faith in Vietnam to the extent he wishes to do so, without harm or interference from the authorities. The Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant as a practicing Catholic in Vietnam.

    A18 visit to detention centre

19. On the applicant’s own evidence the Vietnamese police officers showed no interest in the applicant during their visit to the detention centre.  There is no other evidence or indication that their visit poses any risk to the applicant on return to Vietnam. The Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant on return to Vietnam as a result of the visit of the A18 officers to the detention centre.

    ‘Data Breach’

20. The Tribunal has accepted that information about the applicant was inadvertently publicly available on the Department’s website for a short period in February 2014. This information included his name, date of birth, nationality, gender and details about his detention, but not that he applied for a Protection visa or information regarding his claims for protection.

21. Given the nature of the information the Tribunal does not consider that its publication would cause any problems for the applicant on return to Vietnam. The Tribunal is not satisfied that there is a real chance of serious or significant harm to the applicant in Vietnam, arising out of the Department’s ‘data breach’.

    Activity in Australia

22. The Tribunal has accepted that the applicant has been active with a sector of the Vietnamese community in Australia in fundraising for people in need, including those who are the victim of abuses by the authorities, and in participating in annual demonstrations outside the Vietnamese embassy and other sites.

23. The Tribunal notes the applicant’s activity has been low-profile and relatively sporadic.  The Tribunal doubts that his fundraising activity would come to the attention of the Vietnamese authorities or provoke adverse interest from them.  The Tribunal also considers that, in general, the annual demonstrations in Canberra have been large and mobile, with numerous public speakers and activists to distract the attention of any Vietnamese regime representatives who may be monitoring the protests, from the presence or identification of the applicant. Therefore the Tribunal would not ordinarily consider that the applicant’s infrequent and generally low profile activity would come to the attention of the Vietnamese authorities. Given the Tribunal’s finding about the lack of overt political interest on the applicant’s part this would indicate it would cause him no problem on return to Vietnam.

24. However the Tribunal is concerned about the impact of the [footage] of the April 2017 Canberra protest, upon the applicant’s situation on return to Vietnam. As stated above the footage is of an edited television broadcast and includes several minutes of the applicant appearing as a demonstrator next to a man being interviewed at length. The applicant appears dressed in clothes representing the South Vietnam Yellow Flag, including flag insignia. The whole clip itself is a lengthy report of the protest which shows and names the speakers (in subtitles) and interviews a number activists present. It includes footage of anti-regime speeches, chants and songs.  The clip strongly appears in favour of the demonstration. The Tribunal accepts the footage is from a Vietnamese television broadcaster which opposes the Vietnam regime.  The Tribunal accepts the likelihood that the footage has been broadcast and notes further that it remains publicly available on the Internet.

25. Given the length and clarity of this footage and its public availability, in addition to reports of the monitoring by the regime of overseas activities of individuals and organisations opposing the regime, the Tribunal accepts there is a real chance that the applicant has been, or will be, identified as an active participant in the demonstration by the Vietnamese authorities.  The Tribunal also accepts the reports that the former Yellow Flag of South Vietnam is considered to be a sign of opposition to the regime and commonly used at Viet Tan and other opposition events.  Given the applicant’s attire and the presence of many yellow flags at the demonstration the Tribunal accepts there is a real chance the Vietnamese authorities would consider the applicant to be in active and public opposition to the regime.

26. The Tribunal therefore considers that on return to Vietnam there is some likelihood that the  applicant would be accused of being an active opposition activist, detained and interrogated by the authorities. Although the possibility exists that he would be able to convince them that he is not a political threat to them the Tribunal notes the reports of the abusive methods the authorities and police use, including the use of physical violence to obtain confessions.  The Tribunal consider it a real possibility that the interrogation of the applicant would be harsh, as the authorities would perceive him as someone who mixes with opposition activists in Australia and a source of information about opposition activities in Australia. Therefore any denials by the applicant of having been politically active against the regime in Australia would not necessarily be accepted by the authorities or safeguard him against harsh interrogation techniques and detention conditions.

27. The Tribunal further notes the reports of the regime’s high sensitivity to foreign criticism and criticism by its nationals while overseas, in its actions of arresting and imprisoning those who have spoken out or written about alleged abuses while overseas, or to foreign journalists organisations, and representatives. The Tribunal notes the reports that this sensitivity is now extending to Facebook entries that are critical of the regime so that the individuals with such material in their Facebook account can be subject to arrest.  In the Tribunal’s view these political sensitivities add to the risk to the applicant given the context in which he can be identified in the [footage].

28. The Tribunal considers that the applicant is now at risk of detention and serious physical abuse by the authorities on return to Vietnam. While the Tribunal does not consider this risk to be particularly high, it also does not see it as a remote possibility. The Tribunal considers that the broadcast, and continuing availability, of the television footage has exposed the applicant to a real chance of serious harm on return to Vietnam.

29. The Tribunal is satisfied that the essential and significant reason for the harm the applicant is at risk of is his imputed political opinion, given he will be accused of being part of an active opposition, critical of the regime, while in Australia.

100.   As the harm the applicant fears is from the authorities the Tribunal is satisfied that there is no relocation option, and no available state protection, for him in Vietnam.

101.   The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Vietnam.

102. There is no evidence or indication before the Tribunal that the applicant has a right to enter and reside in any other country and the Tribunal accordingly finds that he is not excluded from Australia’s protection by s.36(3) of the Act.

103. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

104. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Melissa McAdam
Member