1506212 (Refugee)

[2018] AATA 998

1506212 (Refugee) [2018] AATA 998 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506212

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Nicola Findson

DATE:1 March 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 01 March 2018 at 1:41pm

CATCHWORDS

Refugee – Protection visa – Vietnam – Imputed political opinion – Anti-regime – Religion – Psychic ceremony – Superstitious activity – Particular social group – Family involvement with the French Colonial authorities – Evading military service – Government blacklist – Police summonses – Illegal departure – Failed asylum seeker – Data breach – Fear of arrest – Witness credibility – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5(1), 36, 45AA, 65, 91R, 91S, 375A, 438, 499

Migration Regulations 1994, r 2.08F, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA vRajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

SZSSJ v MIBP (2015) FCAFC 125

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.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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.

    Background, protection claims, and the delegate’s decision

19. The applicant arrived in Australia, by sea, in May 2013.  He participated in an interview with an immigration officer [in] June 2013.  During that interview, when asked why he left his country of nationality, he said the living conditions in Vietnam were difficult and he came to Australia for a better life. 

20. In August 2013, the applicant provided a handwritten note to the Department.  In that note, he claims that his grandfather had worked for the French Colonial government and after the Communist government came into power his family had been blacklisted.  He claims that he had dodged the military draft.  He claims that he and his family were considered anti-government and were monitored, restricted and persecuted.  He claims he risked his life organising the boat trip to Australia.  He claims before he left Vietnam he had received warrants for being an anti-government protestor and distributing anti-government leaflets.  He claims he will be jailed and tortured for committing crimes of a traitor if returned to Vietnam.

21. In a statutory declaration sworn [in] June 2014, the applicant set out further protection claims, summarised as follows: 

    ·He was born on [date], in Quang Binh, Vietnam.  He is a Buddhist. He is married and has [number] children.  His wife, children, parents and siblings remain in Vietnam.   

    ·He claims on [a date in] February 2013, he invited a psychic to his house to set up an alter and pray for good luck for the family.  He claims during the ceremony [a number of] police officers came to his house and asked him to finish the ceremony.  He claims they also issued him with an infringement notice for conducting superstitious activities. He claims that he told the police officers it was a religious ceremony and that he had the freedom to choose his religion.  He claims he was then slapped and told he would end up in jail for such behaviour.  He claims he managed to escape the custody of the police officers and went to his [Relative A’s] house, where he stayed for [several] days.  He claims [that, after a few days], his wife received a summons from the local police station which required him to report the following day.  He claims he did not attend because he knew he would be harmed if he did. He claims it was clear to him that he would be arrested and harmed by the Vietnamese police sooner or later so he decided to flee the country.

    ·He claims he fears he will be arrested, charged, prosecuted and sentenced to imprisonment if he returns to Vietnam, for departing the country unlawfully.  He claims that after he escaped from Vietnam, his wife received another summons from the police.  He states that this proves the authorities are after him and will harm him if he returns to Vietnam.

22. [In] July 2014, the applicant submitted additional claims through his representative.  These claims can be summarised as follows:

    ·He claims he fears harm due to his personal details being inadvertently released on to the Department’s website.

    ·He claims he has been identified in the Vietnamese press as one of a group of people from his area who organised to buy a boat to escape from Vietnam and illegally travel to Australia.  He claims the boat ID and registration, as well as the name he initially gave to the Department “[name variant]” appeared in the newspaper articles.

    ·He claims the police issued a second summons in his name, [in] May 2013 (after he had left Vietnam), requiring him to attend the local police station.  He claims his wife also received a summons [in] June 2013.  He claims his wife responded to the summons by attending at the local police station, at which time she was asked about the applicant’s travel to Australia and his current whereabouts.  He claims his wife was told by the police that if he returned to Vietnam he would be imprisoned for at least three years for illegally departing Vietnam.

23. The representative also confirmed that the applicant maintained his claims set out in a handwritten note to the Department in August 2013.  Being firstly, that his grandfather worked with the French Colonial government and as a result his family had been blacklisted by the Communist authorities since they first came to power.  Secondly, that he evaded military conscription and fears harm for that reason.

    The delegate’s decision

24. In a decision record signed by the delegate [in] April 2015, the delegate sets out her response for refusing to grant the applicant a protection visa.  The delegate found that the applicant arrived in Australia at [entry point] [in] May 2013 as an unauthorised maritime arrival.  The delegate found, amongst other things, that the applicant was not a credible witness and rejected the applicant’s claims that he hosted a religious ceremony at his home in February 2013, and was subsequently beaten and summonsed by the police.  The delegate also rejected the applicant’s claim that he would be mistreated for reasons of returning as a failed asylum seeker or as a consequence of the release of some of his personal information by the Department.

    Application for Review

25. On 7 May 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.  The application for review was submitted, coupled with a copy of the delegate’s decision record, which the Tribunal accepts as being submitted for the purposes of the application for review.

    Pre-hearing submission

26. On 23 September 2016, the Tribunal received a detailed written submission from the applicant’s representative.  The Tribunal summarises what it considers to be the most significant parts of the pre-hearing submission from the applicant’s representative in the following paragraphs.

27. The submission states that the applicant’s claims for protection stem from involvement in Buddhist religious activities and being accused of conducting superstitious activities as well as for reasons of his grandfather’s involvement with the French Colonial authorities.   The submission also repeats the applicant’s sur place claim of the privacy breach which occurred in early 2014.

28. The submission considers the findings of the delegate in respect of the applicant’s credibility and submits, amongst other things, that the delegate has misconstrued as well as wrongly discredited the evidence provided by the applicant.

29. In response to the delegates finding that the applicant did not raise his claims for protection at his entry interview, it is submitted that the applicant’s claims should be evaluated with more weight given to his claims during the protection visa application process than on what he omitted to say at the entry interview.  It is argued that the applicant did not raise his claims at his entry interview because he feared the Department would release those details to the Vietnamese government. 

30. It is submitted that the delegate’s dismissal of the authenticity of the documents submitted by the applicant on the basis that they were not originals; that the applicant did not mention the incident he had with the police prior to his protection visa interview; and that country information indicates document fraud is common in Vietnam, was an error and in contrast to relevant case law.

31. It is submitted that the applicant’s departure from Vietnam was illegal and if he is returned to Vietnam he could be subject to criminal charges under Articles 91, 274 or 275 of Vietnam’s penal code.  Those relevant provisions are as follows:

    Article 91.- Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration

    1.    Those who flee abroad or defect overseas with a view to opposing the people’s administration shall be sentenced to between three and twelve years of imprisonment.

    2.    Organizers, coercers and instigators shall be sentenced to between five and fifteen years of imprisonment.

    3.    In the case of committing particularly serious crimes, the offenders shall be sentenced to between twelve and twenty years of imprisonment or life imprisonment.

    Article 274.- Illegally leaving or entering the country; illegally staying abroad or in Vietnam

    Those who illegally leave or enter the country or stay abroad or in Vietnam, have already been administratively sanctioned for such act but continue the violation, shall be subject to a fine of between five million dong and fifty million dong or a prison term of between three months and two years.

    Article 275.- Organizing and/or coercing other persons to flee abroad or to stay
    abroad illegally

    1.    Those who organize and/or coerce other persons to flee abroad or stay abroad in cases other than those stipulated in Article 91 of this Code shall be sentenced to between two years and seven years of imprisonment.

    2.    If the offense is committed more than once or causes serious or very serious consequences, the offenders shall be sentenced to between five and twelve years of imprisonment.

    3.    If particularly serious consequences are caused, the offenders shall be sentenced to between twelve and twenty years of imprisonment.

32. The submission also cites sources of country information, including from the Campaign to Abolish Torture in Vietnam, Human Rights Watch (Public Insecurity: Deaths In Custody and Police Brutality in Vietnam (2014)), and that such sources have found police throughout Vietnam abuse people in their custody.

    Tribunal hearings

    Hearing of 2 November 2016

33. The applicant appeared before the Tribunal on 2 November 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

35. The applicant confirmed his basic details, including his date of birth and his citizenship.  He said his elderly parents, [siblings], wife and [number] children remain in his home village in Vietnam. He explained that he finished year [number] at school, but has no formal qualifications and his work has been as a [Occupation 1]. 

36. He told the Tribunal that before coming to Australia he had never travelled outside Vietnam.

37. The applicant confirmed he travelled to Australia by boat with [number] people – including his [Relative B] and friends - who were from his home area.  He said that they all decided to contribute some money to buy a boat and to travel to Australia, because their living conditions in Vietnam were not good.  He said a man by the name of “[Mr C]” assumed responsibility for the trip, because he was experienced in sea voyages.  He said the boat left from the [port in] Vietnam [in] April 2013, and sailed without stopping to Australia, along the coast of [specified countries].  He said he maintains contact with some of those he journeyed with from time to time.  He was unable to tell the Tribunal where the men he has stayed in contact with were currently living. 

1. He said he maintains frequent telephone contact with his family who remain in Vietnam.  The applicant told the Tribunal that he has not held a job since he arrived in Australia.  He said he supports himself on his Centrelink payments.

2. The Tribunal asked the applicant why he fears returning to Vietnam.  The applicant told the Tribunal that he cannot go back to Vietnam for three reasons:  his family has been discriminated against by the Vietnamese government because of their French Colonial connections; he and others arranged the escape from Vietnam by boat; and he did not report himself to the Vietnamese authorities after receiving a summons. 

3. The Tribunal asked the applicant about an additional claim he had made to the Department in August 2013, specifically his evasion of military service.  The applicant told the Tribunal that this claim was still relevant to his application.  He said this was another reason it would be difficult for him to return to Vietnam. 

4. As to his claim to fear harm on the basis of his French Colonial links, the applicant told the Tribunal that his family background is considered very bad in the eyes of the Vietnamese government.  He said because of his grandfather’s employment with the French, his family was disadvantaged in many ways.  He said his father had told him that he had not been permitted to receive cooperative monthly or quarterly provisions of rice and food under the Communist regime.  He said none of his family members would ever be permitted to hold a good job in the government sector because of their political background.  When asked what other discrimination his family suffered for this reason, he said his family were not considered to be “real citizens” and if they applied for something they were not treated as others were. 

5. The Tribunal invited the applicant’s comment on its observation that a large proportion of the Vietnamese population would not hold a government job, and the applicant’s family had been able to work over the years to support themselves.  The applicant said that in comparison with other Vietnamese people, his family were disadvantaged.  The Tribunal asked the applicant what proportion of his community would have French Colonial connections.  The applicant replied that he was not sure.  He went on to say that anyone with French connections are disadvantaged.  The Tribunal asked how else his family had been disadvantaged.  The applicant said he had told the Tribunal all of the ways his family had been disadvantaged because of the French colonial links.

6. The applicant told the Tribunal that he is certain that government officials are investigating him.  He said that despite his grandfather’s links to French Colonialism, he could have kept on with his life in Vietnam, but now he fears he will be seriously harmed if he returns there because of his involvement in an illegal escape from Vietnam.  He said in Vietnam, a minor mistake can turn into a very big problem, and he believes that if someone is in custody, that person could be punished in different ways.

7. The Tribunal discussed with the applicant Department of Foreign Affairs and Trade (DFAT) country information concerning the treatment of returnees to Vietnam. [1] In particular, it discussed with the applicant that DFAT advises that “Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration” is an offence under Article 91 of the Penal Code 1999 but they are unaware of any cases where this provision has been used against failed asylum seekers.  Further, DFAT state that they have no information to suggest that people known or believed to have sought asylum in other countries receive different treatment from the Vietnamese government for having sought asylum. The Tribunal also put to the applicant that DFAT have relevantly commented that Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return.  The applicant responded that it is difficult to predict what would happen in Vietnam to returnees.  He said that provisions of the Penal Code in Vietnam state that people smugglers or escape organisers are considered criminals and are treated differently to asylum seekers who return.  He went on to say that a few decades ago people smugglers were not imprisoned either when they returned to Vietnam.  He said that no one he had arrived with by boat in Australia has returned to Vietnam, so he did not know what would happen to him. 

   [1] This country information discussed with the applicant is contained in the DFAT Country Information Report Vietnam, 31 August 2015, as well as in the most recent DFAT Country Information Report Vietnam dated 21 June 2017

8. The Tribunal asked the applicant to explain why he would be regarded a “people smuggler”, by the Vietnamese authorities.  The applicant told the Tribunal that, because of his limited education, it was difficult for him to explain this.  He said that although he was not a people smuggler, he was still an escape organiser and would be considered a traitor by the Vietnamese authorities. When the Tribunal indicated to the applicant that it found it difficult to understand why he would be considered an organiser when on his earlier evidence “[Mr C]” had organised the boat and steered to AUS.  He said while the boat skipper had the main responsibility for buying and operating boat, [he] was responsible for making repairs to the boat.  He said the others he travelled with also each had a job to do in relation to their trip.  He said they had all discussed how they would plan their escape from Vietnam.  He said he wished the Tribunal would look at him as being an escape organiser.  He said that even though he did not make a financial gain from the journey, he was still an escape organiser.   

9. The Tribunal asked the applicant about the incident he claimed occurred in February 2013. He said he invited a psychic to his home to conduct a ceremony to get rid of bad spirits.  He said that if his family ever experienced bad luck they would organise for this ceremony to take place.   The applicant said he was unable to tell the Tribunal on how many occasions this ceremony had taken place in his home.  He said his wife was home during the ceremony as well as a neighbour.  He said that during the ceremony, the police arrived and told him to cease the superstitious activity.  He said he got angry and told the officers he was allowed to hold his own beliefs and carry out the ceremony in his home.  He said that when he stood up to the officers he was slapped in the face by the police officers and told that he had terrible behaviour.  When asked by the Tribunal to elaborate on what was said by the police officers, the applicant explained that there was not much to the conversation. He said he told the police officers that the ceremony had finished.  He also said he demanded they tell him what authority they had to stop him doing what he chose to do in his own home.  He said the police officers told him they wanted to arrest him because of his behaviour and because of his superstitious activities.  He said that when a police officer grabbed his arm to arrest him, he managed to run away. He said that he fled to his [Relative A’s] house, in the Quang Trach district in his home province, to avoid being arrested by the police.  He said that while he was there he learned from his wife that he had been issued with a summons. He said the summons stated that he had obstructed an officer on duty asked him to report at the village police station.  He said he ignored the summons because he thought something bad would happen to him, for example he would be arrested or assaulted, and that he had already planned to leave the country.    

10. The Tribunal asked the applicant how he thought the police would have known the ceremony in his home was taking place at that particular time on that day.  The applicant said that the officers may have seen the psychic walking around his house driving away the harmful spirits with fire in front of him.  He also offered an alternative explanation - that it may have been a neighbour that alerted the police. 

11. The applicant told the Tribunal that he was not a practising Buddhist.  

12. When the Tribunal indicated to the applicant that his account of the incident was somewhat different to what he had told the delegate at his Departmental interview, the applicant said that there had been some issues with interpreting at the protection visa interview.  He said that during that interview, because his accent was different to that of the interpreter, he was unsure of whether his responses were being interpreted accurately.  When asked whether he had raised any difficulties with the interpreting at that time the applicant said that he had not because he was did not know whether the words were being interpreted correctly.  He said the only way to check whether the interpreter did their job properly would be to listen to the recording of the interview again.

13. When the Tribunal asked the applicant how he managed to escape [a number of] police officers, he said that it was at his house – not at the police station as previously recorded - and because the police officers would not have expected that he would run away. 

14. The Tribunal asked the applicant why it was he thought the police officers took issue with him performing the ceremony.  The applicant told the Tribunal that it is his view that everyone should have the freedom to practice their own religion and faith and he did not think the police officers had the right to stop him practising his faith.  The Tribunal put it to the applicant that Vietnamese citizens, on the country information before it, do enjoy freedom of belief and religion.  It also indicated to the applicant that DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam – which can broadly be defined and include land use issues – religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. The applicant responded that the police officers said the ceremony was superstitious and not good, and he could not understand why they thought this. 

15. The applicant told the Tribunal that after spending [several] days at his [Relative A’s] after the incident he returned home and started working as a [different occupation].  He said his purpose was to get used to being at sea.  He said he did not encounter any problems with the authorities after he returned until he left on his boat voyage [in] April 2013.  He said during this time he stayed at home for a while and also spent time on the boat. 

16. The applicant told the Tribunal that his wife received two summonses after he had fled Vietnam.  He said his wife was too scared to do anything about the first summons she received, but reported herself after the second one was delivered. He said that when she arrived at the police station she was spoken to by an officer of the provincial department as well as from the national department of police about the applicant.  He said she told them she did not know anything about how the applicant had organised the trip from Vietnam.  He said she was told that each of the men that had left on the boat would be fined VND 100million and receive between three and five years of imprisonment. 

17. The Tribunal indicated to the applicant that it had difficulty understanding why the police would take no action after non-compliance with the summonses they issued, not only in relation to him but to his wife.  The applicant said that he did not know why the police had not come to his house, when they had the power to do so, to arrest him or his wife after they ignored their summonses. 

18. The applicant told the Tribunal that the police have not made any further contact with his family.

19. The Tribunal asked the applicant why others that were present at his house did not get into trouble for the ceremony.  The applicant responded that in Vietnam, the officials deal with the head of the household. 

20. The applicant told the Tribunal that he had never had any problems with the Vietnamese authorities before this incident.

21. The Tribunal discussed with the applicant his claim to fear harm on the basis of him avoiding military service.  The applicant told the Tribunal that in Vietnam, if someone doesn’t comply with military service, they are fined or subjected to labour obligations.  The Tribunal put it to the applicant that military service was compulsory for men aged between 17 and 25 years, and queried why it would be a problem for him now given his age ([specified]).  The applicant said that when he was called for military service he was under 25.  He said that when he refused to do military service, he explained his situation to the authorities - that in his family there were many other siblings to take care of - and he was required to do some labour as punishment.  The applicant conceded that this issue had been resolved, but the Vietnamese government would look at everything in his background and he would like to include this in his claims for protection.

22. The Tribunal discussed with the applicant his claim, outlined in his handwritten statement to the Department in August 2013, which concerned him being summonsed in relation to distributing anti-government leaflets.  The applicant said that this happened in [earlier year range] and was a misunderstanding.  He said he was suspected of having something to do with the leaflets because he happened to be in the wrong place at the wrong time.  He said he had stopped in an area to have breakfast, near the village People’s Committee, and there were papers saying bad things about the officials where he had stopped.  He said the authorities thought he was involved in the distribution of the leaflets, but he was not.  He said he reported himself after he had received a third warrant and explained that he was not involved in distributing the papers.  He said the police officers accepted his explanation and that was the end of the matter.  The applicant said the incident was not serious, but he had wanted the Department to be aware of it.

23. As to the applicant’s claim he was mentioned in the Vietnamese press as part of the Vietnamese group who had left the country by boat, the applicant reiterated that organising and illegal escape would be a serious crime according to Vietnamese law.  He said information about his situation had been spread widely by the media and would make his return to Vietnam more dangerous.  He said while he was in detention he learned that the names of those that had left Vietnam and their boat registration had been released.  He said his name was not quite correct, but the boat registration was correct.  He also said the names and ages of the others he had travelled with, and who lived nearby to him, had been released by the media.

24. The Tribunal indicated to the applicant that it had concerns about the truthfulness of aspects of the claims he had put forward.  In particular, the Tribunal indicated that one aspect causing it concern is that he gave a different identity during his entry interview as well as failed to disclose that his [Relative B] was also on the boat he arrived in to Australia on. The Tribunal expressed its concern that the applicant giving false information at the entry interview raised serious questions as to the credibility of his evidence generally. The applicant responded that when he first arrived he was confused and did not trust anyone.  He said it took a long time for him to trust the Department and disclose his true identity. 

25. The Tribunal also invited the applicant to comment on why he did not indicate any fear of return to Vietnam or mention any of his current claims at his entry interview, but rather referred to coming to Australia for economic reasons.  The applicant replied that he had made a mistake not doing so, but he had been advised by the interpreter not to tell delegate his full story.  He said he listened to the interpreter’s advice not to mention the problems his grandfather had encountered because they had happened too long ago.  When asked why he did not make any mention of the incident [in] February 2013, the applicant said that he should have mentioned it.  He went on to say that it did happen and was a partial reason for him fleeing Vietnam.  He said there are other reasons, for example the discrimination against him and his family by the government, that he decided to leave Vietnam.  He said he wanted his children to have a better life.  The Tribunal indicated that it might think that the applicant not mentioning the claims central to his protection application sooner than he did detracts from his credibility.  The applicant replied that his claims were true. 

26. He then told the Tribunal that he wanted to raise another claim.  He claims a grenade was thrown into his family home, which fortunately did not explode.  He said that after learning that the delegate did not have any problem believing that his grandfather had involvement with the French government, but found there were issues with his story, he wanted to disclose this incident rather than generally stating that his family had been discriminated by the current Vietnamese government.  When the Tribunal asked the applicant to provide further detail about the grenade incident.  He said his father had told him that the grenade was thrown into his grandfather’s home [over sixty years ago]. 

27. Having run out of time, at this point the hearing was adjourned.

    Further Submission

28. In anticipation of the second hearing, on 15 November 2016, the applicant’s representative provided a further submission to the Tribunal in relation to the applicant’s persecution by the Vietnamese authorities because of his membership of a particular social group, namely a descendant of a person viewed as a collaborator with the French and therefore a traitor of Vietnam.  It is submitted, amongst other things, that the applicant’s grandfather worked for the French government [over 60 years ago] when he was a chief of his village, and he was considered a traitor by the Vietnamese communists when they took over the country.  It is submitted that the applicant’s family suffered discrimination for three generations because of his grandfather’s involvement with the French government.  It is submitted that the applicant’s father was ordered to leave home to move to a new economic region in [year range].  However, around this time, the applicant’s grandfather died and because in accordance with Buddhist tradition he was required to remain with the deceased’s body until burial the applicant’s father missed the deadline in which to move.  The government viewed this as an act of rebellion and cut off the food stamps, removed him from the cooperative in which he was living, demolished his house and took away his [equipment] (his only source of income). In relation to the continuing discrimination, it is submitted that the applicant only went to school to learn how to read and write and was only able to obtain labouring work because he was not a member of the communist party and so unable to obtain good employment.  It is submitted that if the applicant applied to join the Communist party, his application would be certain to fail as his grandfather was deemed to be a traitor.

    Hearing of 21 November 2016

29. The Tribunal asked the applicant to confirm the protection claims he had made at the first hearing.

30. The Tribunal, noting the submission provided by his representative prior to the resumed hearing, asked the applicant if there was anything else he wished to say in relation to his claim concerning his family’s French Colonial connections.  The applicant responded that he had told the Tribunal about this on the last occasion and did not have anything further to add. 

1. The Tribunal asked the applicant to clarify how his grandfather’s French Colonial ties impact on him on a daily basis.  The applicant replied that because of his grandfather, the three generations that followed him are mistreated by communist government.  He said because of his grandfather’s bad reputation, he and his family are not treated the same as other Vietnamese citizens. 

2. The Tribunal asked the applicant to comment on DFAT country information indicating that the household registration system (Ho Khau) gives Vietnamese citizens basic rights and access to public services.  In particular, the Tribunal put it to the applicant that DFAT information states that the Ho Khau is used as the primary source of identification for obtaining other official documents, including licences and passports, and links a person’s right to access government healthcare, education and other services to their place of residence.  The Tribunal indicated to the applicant that this country information appears to say that if you have Ho Khau registration you are guaranteed basic civil rights.  The Tribunal put it to the applicant that the fact that he had household registration suggests that he and his family are able to access government services, such as education and health care services.  The applicant replied that he did not agree with the country information.  He said the Ho Khau is compulsory in each village.  He said Ho Khau registration does not mean that he has all the rights.  

3. As to the applicant’s claim to fear harm because of his family’s French Colonial links, the Tribunal indicated that it had not been able to locate any reports which contain information about discrimination for this reason.  That is, there does not appear to be any information that sets out that Vietnamese citizens with French Colonial links are discriminated against.  The applicant replied that in reality this does occur.  The Tribunal put to the applicant that given it has been unable to find any information about this claim, amongst the many independent reports setting out information about the situation in Vietnam for people seeking protection in other countries, this may suggest that in reality the applicant does not face adverse treatment by the Vietnamese authorities because of his grandfather’s French Colonial links. The applicant commented that if the Tribunal says there is no discrimination, how can he refute that.  He went on to say that that although he has no evidence, discrimination does exist.  

4. With respect to the claim of fearing he will be harmed because he fears his details were released to the Vietnamese authorities as a result of a privacy data breach, the Tribunal referred the applicant to the delegate’s finding that the reasons for the applicant’s detention were not included in the data that was accessible as a result of the Department’s data breach.  The applicant said that he has concerns about his name being released as a result of a data breach by the Department, but did not know what else to say about it. 

5. The Tribunal put it to the applicant that country information indicates the government is aware that people leave Vietnam for economic and employment reasons and that it would not necessarily be assumed that he left Vietnam because of any anti-government political opinion.  The applicant responded that in his case he is afraid to return to Vietnam because he has committed an offence of organising an escape from his country.  He indicated that people who return to Vietnam from Australia are fined money and also warned.  However, he said in his case there might be a more serious outcome. 

6. The Tribunal asked the applicant whether there was any other reason why he cannot return to Vietnam.  He said he had explained the reasons why he has already faced discrimination, and now he has escaped, so he is afraid about how his life will be if he returns to Vietnam. 

   Post hearing – Information from the Department

7. Following the hearing, [in] January 2017, the Tribunal was provided with information from the Department concerning the applicant.  In particular, the information indicated that the applicant had attempted to obtain entry to [Country 1] on an alternate identity.  The Department indicated that it had sought to obtain a report from [Country 1] [authorities] and would provide the report to the Tribunal once it had been received.

8. [In] May 2017, the Tribunal received further information from the Department indicating that in November 2009, the applicant had attempted to enter [Country 1] illegally, under the name [alias], in the back of a vehicle. The report was accompanied by a non-disclosure certificate, which the Tribunal considers to be invalid given that it was issued pursuant to s375A rather than s438 of the Act.

9. The Tribunal invited the applicant to a hearing on 15 June 2017, to afford him procedural fairness and discuss the material received by the Department which was covered by the invalid certificate.  On 9 June 2017, the Tribunal received a request from the applicant’s representative to postpone the hearing, on the basis that the representative was unavailable on that day.  The Tribunal re-scheduled the applicant’s hearing to 12 July 2017.  Two SMS messages were sent to the applicant on 5 and 11 July 2017, reminding him of his hearing commitment.  However, the applicant did not attend the hearing on 12 July 2017. 

10. When the applicant did not attend his scheduled hearing, the Tribunal wrote to him and invited him to comment on or respond to the information it had received from the Department and covered by the invalid certificate.  The applicant did not respond to the Tribunal’s letter.

11. As set out in earlier paragraphs of this decision record, the applicant’s general credibility was raised as an issue with him during his previous hearings before the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether Australia has protection obligations in respect of the applicant.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference and third country protection

13. The applicant arrived in Australia as an undocumented person and had no valid travel documents in his possession upon entry to Australia.  He subsequently submitted a copy of his Vietnamese identity card, household registration card and marriage certificate as evidence of his identity.  Based on the evidence provided by the applicant to the Department, and to the Tribunal, the Tribunal finds the applicant is a national of Vietnam and that Vietnam is the country of reference for purposes of his refugee protection claims, and the receiving country for purposes of his complementary protection claims.

14. There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in any other country than Vietnam. The applicant is therefore not prohibited from protection by operation of the third country protection provision in s.36(3) of the Act.

    Credibility considerations.

15. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

16. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

17. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

18. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA vRajalingam (1999) 93 FCR 220).

19. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

20. The Tribunal carefully considered all of the evidence available to it in this case.  It considered the applicant’s written statements, his oral evidence before the Tribunal, and the detailed written submissions made by his representative.  It considered the records of his interviews with the Department, the applicant’s documentary evidence submitted to the Department, and the material included in attachments to the submissions received by the Tribunal.  On the basis of the evidence before it, the Tribunal accepts the applicant was born on [date] in Quang Binh, Vietnam; is a Buddhist; is married with [number] children; and is a [Occupation 1]. 

21. However, after carefully considering all of the applicant’s evidence in arriving at an assessment of the credibility of his evidence and claims, the Tribunal concludes that the applicant is not a credible witness.  The Tribunal has reached this conclusion for the following reasons:

    ·On arrival in Australia, the applicant gave a false identity and indicated he had not travelled to Australia with any other family members. The applicant told the Tribunal he did this because he was confused and did not trust the Department enough to disclose his true identity. The Tribunal notes the applicant was advised of the confidentiality of the Australian entry and protection processes and would expect that he provide correct details about himself.  The Tribunal considers this detracts from the applicant’s general credibility.

    ·As put to the applicant at the Tribunal hearing (and as recorded in the delegate’s decision provided to the Tribunal by the applicant), he did not indicate any fear of return to Vietnam or discuss any of the claims in his handwritten note to the Department in August 2013, or in his subsequent statutory declaration, sworn [in] June 2014 and submitted with his protection visa application, at his entry interview with the Department in June 2013.  At that time, the applicant simply indicated he came to Australia for economic reasons - to look for a better life because the living conditions in Vietnam were too difficult and he had a lot of debt there.   As discussed with the applicant at the hearing, he was informed prior to the entry interview that any information he provided to the Department would be kept confidential.  He stated that he had made a mistake by not mentioning any of his current claims at his entry interview, but had been advised by the interpreter not to tell the Departmental officer his full story.  The Tribunal has considered the explanation provided to it, but does not find it convincing that the applicant would fail to discuss the claims central to his protection visa application on the advice of the interpreter.  Nor does the Tribunal accept that this explains the magnitude and significance of the inconsistencies and omissions in this case, such as the inconsistency between him indicating at his entry interview that his day-to-day life was not impacted by the police or security in Vietnam, as compared to subsequently claiming, amongst other things, that he had fled Vietnam on the basis of being accused by the police of conducting a religious activity in his home as well as for reasons of his grandfather’s involvement with the French Colonial government. The Tribunal considers the applicant’s failure to make some reference during his entry interview to the reasons he later stated are central to his protection claims seriously undermines the claims and the credibility of his evidence.  Instead, and based on all the evidence, the Tribunal formed the view that the applicant has fabricated claims for the purpose of bolstering his protection visa application.

    ·The Tribunal finds that the applicant’s explanation as to the inconsistency between his entry interview statement and the evidence before the delegate are different.  That is, he apologised to the delegate and submitted to her that while he gave unclear information at his entry interview because he was fearful, he was telling the truth at his protection visa interview.  Whereas before the Tribunal, he added the claim that he had not raised all of his claims at his entry interview, because the interpreter had advised him not to.

    ·The Tribunal finds that important aspects of the applicant’s claims are not supported by independent country information.  For example, the weight of country information indicates that the Vietnamese government permits a significant degree of freedom for religious worship, including Buddhism. Having regard to all the evidence before it, the Tribunal formed the view that the applicant had fabricated his claims of being at risk of serious harm for conducting a religious ceremony at his home in Vietnam. 

    ·The Tribunal also finds that aspects of the applicant’s claims are weakened because of a lack of country information.  For example, the Tribunal was unable to locate any information whatsoever in relation to harm suffered by Vietnamese citizens with links to the Colonial French government.  This led the Tribunal to question the veracity of the applicant’s claim to have been persecuted by the Vietnamese government on account of his grandfather’s connections to the French government.

    ·The Tribunal finds that the information provided to it by the Department, concerning the applicant attempting to enter [Country 1] illegally and under a false name in 2009 (which was covered by an invalid non-disclosure certificate), also detracts from the applicant’s general credibility.

22. The Department’s files contain copies of documents which the applicant claimed are the summonses issued by Vietnamese police.  However, and as set out in the delegate’s decision, document fraud is common in Vietnam.  DFAT advises that such fraud “is not necessarily linked to criminality or attempts to avoid entry and exit requirements. Applicants may resort to fraudulent documents - or to obtain them unofficially - to avoid corruption and inefficiency in the responsible government agencies.” Because of this, and the significant inconsistencies in the applicant’s evidence, the Tribunal gives no weight to these documents.

    Assessment of Refugee protection claims

23. It is submitted that the grounds for the applicant’s claimed persecution are his political opinion, as well as for reasons of membership of a particular social group of people who have fled Vietnam to seek asylum.  He has claimed to fear harm for reasons of his grandfather having French Colonial links and for voiding military conscription.  He has also claimed to fear harm for reasons of being in immigration detention when there was a privacy data breach and that he believes the Vietnamese authorities may have accessed this information.  The Tribunal considers each of these claims below.

    Imputed anti-government opinion

24. The Tribunal is prepared to accept the applicant’s claim that in February 2013 he arranged for a ceremony to be performed at his home to rid it of bad spirits.  However, having regard to all of the evidence, and to its assessment of the inconsistencies in it and its findings that he is not a credible witness, the Tribunal rejects his claim that local police interrupted this ceremony and issued him with an infringement notice for conducting superstitious activities.  It follows that the Tribunal does not accept that the applicant was assaulted when he argued with the officers; or that he escaped their custody after he was threatened with arrest.   Nor does the Tribunal accept that the applicant was summonsed to be questioned on a charge related to his actions at his home a few days later, or after he had left Vietnam.

25. Based on the Tribunal’s assessment of the applicant’s unreliability as a witness, and having regard to all of the evidence, including country information that indicates adherence to Buddhism in Vietnam is tolerated; that he has not claimed to have experienced any other harm in relation to his religious activities; and that he is not a practising Buddhist, the Tribunal does not accept that the applicant faces a real chance of serious harm on return to Vietnam in the foreseeable future on the basis of his religious beliefs.

26. In consideration of the applicant’s claims that centre on his grandfather’s connection to the French government 60 years ago, the Tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicant on this basis. The applicant claims that if he applied to join the Communist party, his application would fail as his grandfather was deemed to be a traitor, and one had to be a Communist party member to get a good job.  He indicated that his family are discriminated against because no member of his family can apply to be a member of the Communist party.  Country information suggests that not being a member of the communist party is not a barrier to career progression.  According to a 2015 source, out of a population of 87 million people, about 3 million belong to the Communist party and 70% of those live in north Vietnam.  Many southerners are indifferent to the Communist party and do not consider membership of it to be necessary in progressing their careers.  Roughly 6% of Vietnamese who live in the applicant’s home province (on the north central coast of Vietnam) are members of the Communist party. [2]  On the basis of the information before it, while the Tribunal does accept the applicant’s claim that his family might be refused if they applied to join the Communist party, it does not accept that this has any significance with regard to his claim for protection:  it does not place him at risk in any way and does not affect his ability to subsist.  The Tribunal rejects the applicant’s claim that not being a member of the Communist party is a barrier to getting a good job.

    [2] Boudreau, J. & Oanh Ha, K. (2015) Vietnam's Divide: Slow Healing, Fewer Prospects for Children of U.S.Allies, Bloomberg accessed 30 November 2017 at >

    The applicant’s evidence is that he learned from his father about his grandfather’s connection to the French government and that what had happened in the 1950’s had a big impact on his grandfather’s life: he was believed to be a traitor by the Communist regime and had a grenade thrown into his home.   But, for the applicant, the impact on him was vaguely described by him as not being considered a “real citizen” and “not treated like others if he applied for something”.  The applicant confirmed that he had Ho Khau - household registration - which country information indicates gives Vietnamese citizens basic rights and access to public services. Also, neither the Tribunal or the applicant’s representative was able to locate country information that corroborated the claim that people with French colonial ties are or have been discriminated by the current Communist regime.  On the basis of the evidence before it, the Tribunal concludes that the claim that his grandfather’s connection to the French government 60 years ago impacted the applicant has no substance.  The Tribunal therefore does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicant because of his grandfather’s connection with the French government.

1. The Tribunal has also considered the applicant’s claim that in [year range], his father was ordered to leave his home and move to a new economic region by a certain dated but failed to do so, which was viewed as an act of rebellion by the authorities.  The applicant claimed that the government stopped his father’s food stamps, removed him from the cooperative where he was living, demolished his house and took away his [equipment] which was how he generated an income.  The Tribunal understood that this was submitted as an example of how the applicant’s family has been discriminated against by authorities.  The Tribunal accepts that this incident occurred as claimed, while noting that it happened more than 30 years before the applicant left Vietnam for Australia, and it was a response by authorities to the applicant’s father failing to respond to an order.  The Tribunal does not accept that this has affected the applicant in recent years or will do so in the future.  The Tribunal does not accept the applicant faces a real chance of serious harm or a real risk of significant harm due to being imputed with an anti-government political opinion because of the actions of his father in the 1970’s. 

2. The Tribunal considered the applicant’s claim that he fears harm for evading military conscription in Vietnam.  The applicant is now [age] years of age (his protection visa application shows that he was born [date]).  Vietnam’s revised Law on Military Service came into effect on 1 January 2016 and applies to males aged between 18-27 years.[3]  Further, on the applicant’s own evidence, he carried out labour in lieu of military service several years before he left Vietnam for Australia.  Based on his individual circumstances and the independent country information, the Tribunal finds that the applicant does not face a real chance of persecution on account of his claimed refusal to do military service in the reasonably foreseeable future from the authorities or anyone else. 

   [3] Ministry of Justice (Socialist Republic of Vietnam) 2016, Ten laws take effect as from 1 January 2016, 8 January < Accessed 30 November 2017 <CX6A26A6E2493>.

3. The Tribunal considered the applicant’s claim that he was summonsed in relation to distributing anti-government leaflets.  Having regard to the unreliability of the applicant’s testimony, and to his evidence, the Tribunal rejects his claim that he was summonsed on three occasions in [earlier year range] for distributing anti-government leaflets, or for any other reason, and finds that he does not face a real chance of serious harm or a real risk of significant harm on this basis.

4. Based on the Tribunal’s assessment of the applicant’s unreliability as a witness, and having regard to all the evidence, including evidence that he had never encountered any problems with the Vietnamese authorities before February 2013, the Tribunal finds that the applicant did not suffer serious or significant harm whilst in Vietnam. It finds that some of the claims submitted, for example, that his grandfather’s links to the French affected the applicant, were contrived and had no basis in fact. In relation to the issues discussed above, the Tribunal does not accept that the authorities in Vietnam impute an anti-regime political opinion to the applicant. Nor does the Tribunal accept that the applicant and his family were subject to monitoring by the Vietnamese authorities.  The Tribunal considered whether or not there is a real chance the applicant would suffer serious harm or a real risk he would suffer significant harm if he was to return to Vietnam for the reasons so far discussed, and concluded that he would not.

   Data breach / Failed asylum seeker

5. The applicant claims he will be harmed by the Vietnamese authorities because his personal details were released in a ‘data breach’. He also claims that the Vietnamese authorities will accuse him of being opposed to the government of Vietnam because of his claim for asylum. The ‘data breach’ relates to the department mistakenly publishing information on its website revealing the personal details of people in detention for a period of approximately 14 days in February 2014.[4] Information on the Departmental file confirms that the applicant’s details were included in the data breach and the Tribunal also accepts that this occurred. The facts before the Full Court Federal Court in SZSSJ[5] are that the Document was accessed 123 times, and in its report to the department following the data breach, KMPG[6] stated it was not possible to discount the possibility authorities in another country may have accessed the information in the data breach. While there were no reports of the data being downloaded in Vietnamese sites, the Tribunal cannot discount the possibility of it being disseminated to Vietnamese authorities.

   [4] P. Farrell, ‘Scott Morrison ensured asylum seeker data breach probe failed, court finds’, 18 September 2015 “The Guardian”

   [5] SZSSJ v MIBP [2015] FCAFC 125

   [6] KPMG Abridged Report, Management Initiated Review: Privacy Breach – Data Management, 20 May 2014

100.   The Tribunal accepts that the applicant’s name, date of birth, nationality and details about his detention were inadvertently publicly released by the Australian government in February 2014 when he was in detention. The Tribunal therefore is open to accepting the possibility the Vietnamese authorities have accessed the information. However, the Tribunal notes that the release of the information was in February 2014, while the applicant lodged his protection visa application [in] June 2014. The information released by the Department did not disclose the nature of the applicant’s claims. The Tribunal therefore finds the details of the applicant’s protection claims have not been made available to the Vietnamese authorities.

101.   The Tribunal accepts that the Vietnamese authorities would be aware that the applicant had been in detention and had sought asylum.  The applicant has not claimed that he has been involved in any political activities in Vietnam and the Tribunal has not accepted that the applicant was ever of adverse interest to the authorities whilst he was in Vietnam.  Accordingly given this and the overall weight of the country information, the Tribunal does not accept that the applicant is or will be of any adverse interest to the Vietnamese authorities on account of any actual or imputed political opinion or that he faces a real chance or real risk of being charged under Article 91 or being seriously harmed or significantly harmed.

102.   Given the totality of the country information and his individual circumstances, the Tribunal finds that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Vietnam as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or failed asylum seekers returning from a Western country). 

103.   Based on his individual circumstances and the independent country information, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk he will suffer significant harm on this basis.

Illegal departure

104.   The applicant claims that his chance of serious harm exists, or is elevated, for reasons of him leaving Vietnam by boat, illegally. 

105.   The Tribunal has taken into account the information provided by the applicant. However, it has given greater weight to the country information of DFAT given its authoritative and more recent nature.   As put to the applicant, DFAT have relevantly commented:

5.16 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND 2 million and VND 10 million (approximately AUD$120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND 20 million and VND 50 million (AUD$1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.

5.17 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.

Conditions for Returnees

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. [7]

[7] This country information discussed with the applicant is contained in the DFAT Country Information Report Vietnam, 31 August 2015, and mirrored in the most recent DFAT Country Information Report Vietnam dated 21 June 2017

106.   The Tribunal accepts that the applicant left Vietnam by boat without using a passport. However, the Tribunal does not accept that the way in which the applicant left Vietnam creates a real chance of serious harm, or a real risk of significant harm, if the applicant returns to Vietnam now or in the reasonably foreseeable future, as the Tribunal does not accept that the applicant would be perceived to be an organiser of boat journeys who took money from other people, or a people smuggler, for the following reasons.

107.   The applicant’s evidence is that he and group of people from his area organised to buy a boat to illegally depart Vietnam to travel to Australia. It is also the evidence of the applicant that although [he] was responsible for making repairs to the boat, his name was not included as an owner in the registration form for the boat which he used to travel to Australia.  There is no evidence before the Tribunal that the applicant was a people smuggler or had organised the boat journey for other people from whom he took money.

108.   The Tribunal has considered the applicant’s claim that he was identified in the Vietnamese press as one of a group of people from his area who organised to buy a boat to escape from Vietnam and illegally travel to Australia.   A translated copy of an article dated [in] 2013, provided by the applicant to the Department, does not identify him personally, but the applicant’s submissions set out that the boat registration number mentioned in the article is the same as the boat in which the applicant fled Vietnam.  The article refers to a report from the commander of the border guards and names [a number of] individuals.  The applicant’s real name is not mentioned in the article, and the ages of the passengers are not published in the article.  The applicant also claimed that the police summonsed his wife after he left Vietnam, and they sought information from her about how he had organised to leave Vietnam. The Tribunal accepts the possibility that Vietnamese authorities are aware that the applicant has been absent from his village and might deduce that he was a passenger on that boat, and left Vietnam illegally.

109.   However the applicant’s evidence is that it was some years ago that the authorities spoke with his wife. There was no evidence before the Tribunal of the authorities having an ongoing or current interest in the applicant. As already recorded, the applicant said that his family continue to reside in their home area and have had no further contact with the police, and the Tribunal does not accept that the applicant would be perceived to be a people smuggler. Given this, the Tribunal does not accept that there is a real chance or real risk that that he will be suspected by the authorities of having been involved in organising and/or coercing other persons to flee abroad or to stay abroad illegally and accordingly face prosecution under Article 275 of the Vietnamese Penal Code.

110.   The advice provided by DFAT about the view of the Vietnamese government towards its citizens who make asylum claims is generally that they do so for the economic benefits of living in countries like Australia.[8] Therefore the Tribunal does not accept that because the applicant left Vietnam illegally, this means he would be imputed with an anti-regime political opinion by Vietnamese authorities. The Tribunal has rejected the claim that the Vietnamese authorities have imputed an anti-regime political opinion to the applicant because of anything he did or was suspected of doing while in Vietnam, or because of his family links. It follows then that the likelihood is that the Vietnamese authorities will assume the applicant travelled to Australia and sought asylum for economic reasons. This being the case, and in light of the country information set out above, the Tribunal does not accept that the applicant will be imputed with an anti-regime political opinion because he sought asylum in Australia.

[8] CX311927: "Treatment of failed asylum seekers on return to Vietnam", Australia: Department of Foreign Affairs and Trade (DFAT), 24 July 2013

111.   There is no claim or evidence before the Tribunal that the applicant has been administratively sanctioned previously for illegally leaving or entering Vietnam.  Accordingly, the Tribunal finds that there is no real chance or real risk that he will be charged under Article 274 of the Vietnamese Penal Code.

112. Considering all of the evidence before it, the Tribunal finds that upon return the applicant may be briefly detained and interviewed and that he faces a fine of between VND 2 million and VND 10 million (AUD$120 – 600). The Tribunal does not accept that this treatment would amount to either serious harm or significant harm. The Tribunal finds it would not involve systematic and discriminatory conduct as required by s.91R(1)(c). The Tribunal further finds that as this is a real risk faced by the population generally (who breach the illegal departure law) and not the applicant personally under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm. In making its findings, the Tribunal has taken into account the Department’s PAM 3 Refugee and Humanitarian Complementary Protection and Refugee Law Guidelines.

113.   Based on his individual circumstances and the independent country information, the Tribunal finds that the applicant does not face a real chance of persecution on account of his illegal departure in the reasonably foreseeable future from the authorities or anyone else. 

114.   Based on his individual circumstances and the independent country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm on this basis.

Cumulative assessment

115.   The Tribunal has considered cumulatively the applicant’s grandfather’s connections to the French government, his evasion of military service, his father rebelling against the authorities, his Buddhist faith, the data breach and what might occur if he returned to Vietnam as a failed asylum seeker who left his home country illegally.  Even considering his individual circumstances and the independent country information cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in the reasonably foreseeable future for any reason.  His fear of persecution is not well-founded.

116.   Considering the applicant’s individual circumstances and the independent country information cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.

CONCLUSION

117. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

118. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

119. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Nicola Findson
Member