1506299 (Refugee)

[2017] AATA 1181

1506299 (Refugee) [2017] AATA 1181 (15 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506299

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Angela Cranston

DATE:15 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 June 2017 at 11:15am

CATCHWORDS

Refugee – Protection visa – Vietnam – Social discrimination – Forced government acquisition of farm land – Physical altercation with an official – Religion – Catholic – Lack of freedom of religion – Claims inconsistent with Country information

LEGISLATION

Migration Act 1958, ss 36, 45AA, 65,499

Migration Regulations 1994 r 2.08F Schedule 2

CASES

MIAC v SZQRB [2013] FCA FC 33

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 on 11 June 2014 and the delegate refused to grant the visa on 30 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.    In his application, the applicant stated the following:

My name is [name deleted] and I am [age] years old male born in Ha Tinh, Vietnam. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my present claims during my interview with the PV officer. An entry interview was conducted with a DIBP officer. During that interview I was asked to provide my claims in a brief form that is why not all my claims were given at that stage. Also I have not been explained what is relevant and what I am required to disclose to the department for the purpose of assessment of my claims.

My citizenship is Vietnamese and my religion is Catholic. I am married and I have [children], my wife and children remain in Vietnam together with my father and siblings. My mother passed away from natural reasons and so did one of my brothers.

I have one [family member] who is currently with me in [immigration detention]. His name is [name deleted] and his boat ID number is [boat number].

I received two years of education, I worked in my family’s farm then became a labourer. I also [did another job] for eight years and became a [goods] trader later on.

I lived my whole life in Vietnam and my first time to leave was when I was on my way to Australia.

I fear returning to Vietnam as I believe my life will be in danger.

Why I left my country

In [date] August 2008 the Vietnamese government tried to confiscate my land. They wanted to sell it to a tourism company in order to build a resort in our area. I did not agree to sell the land but the government said that I would be compensated.

The compensation was very little and did not match the market price for the land so I did not want to sell. The government however tried to force me to sell the land and settle for the minimal compensation or else the land will be taken for free. I still refused to sign the papers and stood against government orders.

In [date] February 2012 the government sent some policemen and thugs together with machines to forcibly take the land. I tried to stop the men with the help of some villagers who were affected but we were outnumbered. We had to run away for hiding, the government managed to kick us out of our land. After this incident I decided to leave my area and flee to Nghe An province. I did not want the authorities to force me to arrest me for resisting them.

I remained in hiding in Nghe An, I didn’t live a normal life. I was living in a house near the market where I was [working]. I did live in a friend’s house and did not register with the local authorities. I used to sneak in during the night to see my wife and children. The wife used to tell me that the authorities would come and ask about me.

The police sent summons for me to attend the station in March 2012 because I opposed their orders. I ran away and did not attend. In October 2012 the government sent summons to all the families affected by the confiscation of the land to attend a general meeting. There were [several] families affected by the government action, only one was paid higher because they are connected to the government. I did not attend the meeting as I believe I will be arrested if I go.

I decided to leave Vietnam because I could not live a normal life and because the authorities wanted to arrest me. Since my arrival in Australia I learned that my neighbour’s land was forcibly taken and the authorities beat him up. He died one week later is as a result of the injuries he sustained.

5.    The applicant appeared before the Tribunal on 10 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7.    The applicant stated he came to Australia on 19 May 2013.  He also stated his protection visa application forms had been completed with an interpreter’s assistance and his English statement had been translated back to him in Vietnamese.

8.    The applicant stated he lived in [Village 1], Ha Tinh Province up until 2013.

9.    The applicant stated that in 2012 the government took his land and he moved to Nghe An on [date] February 2012 and stayed until he left in 2013. The Tribunal asked why he had just stated that he was in [Village 1] up until 2013. He stated [Village 1] was where he had lived as a child.

1. The applicant stated he lived in Vietnam in Ha Tinh Province in [Village 2], [Town 1] precinct and that his wife and children were currently in the same [village] with his in-laws. The applicant stated that his father and [several] of his brothers lived in [Village 2] and that his brothers had built houses on land that had been given to them by their father. He also stated they had bought government land after they got married and that land remained vacant.

2. The applicant stated that he had purchased government land and that there was no additional land that his father could give him. The Tribunal put to him that his older brother had additional land. The applicant stated his older brother had only bought that land recently.

3. The applicant stated he [worked in agriculture] for around one year before he came to Australia. Before that he was [in another role] from 2008 to 2010 and [did several] things for people. After 2010 he worked for a [company] as a [occupation]. Before that he worked in [a different agriculture role].  

4. The applicant stated he left Vietnam on [date] May 2013 [from] Vietnam to [another country]. He stated he obtained a passport but did not need to show it to the Vietnamese before he left Vietnam.

5. The applicant stated he had political problems and his children would not be able to live there. The applicant stated the government took his land and sold it to tourism people on [date] August 2008. He stated they were only prepared to pay compensation for half of the land and that they ultimately took the land on [date] February 2012. When asked if they took all or just some of the land he stated he refused to sign and they took the whole lot. He then stated the government initially only intended to take the land from [a number of] families but after people refused the process dragged on from 2008 until 2012. He then stated he was trying to say that on [date] August 2008 they wanted to take the whole land and offer him another piece of land. He stated on [date] February 2012 the government sent machines, police and gangsters to take the land by force.  When asked why it took nearly four years for them to do that, he stated they wanted to negotiate and offer compensation but eventually used other means.

6. The applicant stated that they tried to destroy his house and arrest him and during the physical altercation, he hit them, they hit him and he ran away. They arrested other people.

7. The applicant stated he ran to his older sister’s house and then went to his friend’s place in Nghe An Province and remained there up until he came to Australia.

8. The applicant stated he could not return to Vietnam because he was Catholic and they put pressure on him to sell his land. He stated he could not go to the mass because he no longer had freedom of religion and the Vietnamese government tried to oppress religion. When it was put to him that this was the first time he had mentioned that his was an issue he stated he only declared his personal circumstances about the land when he first came to Australia but recently the government had put pressure on religion. The Tribunal put to him that the Department of Foreign Affairs and Trade had stated that Catholics in Vietnam who worshiped quietly and in a manner that conformed to government policies and sensitivities were able to do so with a low risk of official interference. He stated that Catholics who wanted to protest against Formosa were beaten up and that the government oppressed Catholics.

9. The Tribunal put to him that his advisor had stated that he feared harm because he had sought asylum in Australia but that the Department of Foreign Affairs and Trade had said it had no information to suggest that people known or believed to have sought asylum in other countries received different treatment from the Vietnamese government for having sought asylum. The applicant stated he could not return to Vietnam.

10. The Tribunal also indicated that even if he left Vietnam without the government’s permission, DFAT said that he would be fined between AU$120 and $600. He stated he could not return because the government put pressure on him about his land and he had hit a police officer.

11. The Tribunal put to the applicant that in his initial entry interview it was recorded in writing that he said he lived in [Village 2], that he had not said he lived in Nghe An Province and that his last employer was in [Village 2] where he was self-employed [up] until 2012 and did not mention he was working in Nghe An Province.  The Tribunal also put to him that it was recorded in writing that when asked did something specific happen to make him leave in 2013, his answer was that the government threatened everyone and if anyone did not obey their instructions they might be arrested or tortured. He also stated that they took his land, that this issue had continued until 2012, the people whose land had been taken made complaints to the media and many people went to the capital to lodge a complaint but that those actions were useless. The Tribunal put to him that he did not mention that he was involved in a protest where he and the police started fighting, nor that he had to flee nor that he was subject to an arrest warrant.

12. The applicant stated he told the interview officer that he fled to Nghe An.

13. The Tribunal put to him that DFAT had said that the land issue was difficult in Vietnam and that all land was formerly owned by the State which had significant power over land use including compulsory acquisition powers and that land disputes could lead to protests and occasionally violence however the written record of his entry interview indicated he remained in [Village 2].

14. The applicant stated from 2008 to 2010 he [worked in the agriculture industry]. He stated he did declare the [date] February 2012 incident, that he left and went to his [sister’s] place and stayed for one night and then fled to Nghe An. The applicant also stated that his father had divided his land and there was no more left. He also stated his problem was that his land had been seized and he was at risk of being arrested.

15. The adviser stated that the Departmental interview had been conducted over two days and with two different interviewers and that the applicant did state that he would be beaten by police and had raised issues about going to mass. When questioned further, the adviser stated that the applicant’s answer to question 15 was: ‘I wish the government will let me attend mass’. The Tribunal put to the adviser that question 15 was ‘do you have any cultural/religious considerations the Department should be aware of’, and the adviser stated he believed the applicant was talking about his fears in Vietnam. The applicant then agreed with that submission. The applicant also stated religion was oppressed in Vietnam. The Tribunal again put DFAT’s opinion about the ability of Catholics to practice in Vietnam. The applicant stated that since you had to do what the government wanted then how could it be said there was freedom. The Tribunal put to him that he had not indicated that his Catholicism was a problem in his written statement accompanying his protection visa application.  The Tribunal also indicated that question 15 could be interpreted as the Department of Immigration asking the applicant if there were any cultural or religious considerations that it should be aware of. The adviser stated the way the entry interview was conducted was confusing and was broken up over two days and he was unsure if the applicant had been confused by the question.

16. The adviser also stated that given the applicant’s summons, his punishment would not be simply a fine and that people against the government could be charged and may be subject to arbitrary detention and that when combined with his religion and the authorities’ knowledge that he had applied for protection in Australia then he would be persecuted. 

17. The Tribunal indicated that because the written record of interview was the earliest record about what the applicant said had happened to him in Vietnam then the Tribunal may accept it as true and that the written record of that interview said that he said he continued to live in [Village 2] and did not mention an arrest warrant or that the police wanted to summons him.

18. The applicant stated that when he entered Australia he did not tell the whole truth because he was still worried that he might be returned to Vietnam. He also stated he may not have understood some of the questions. He also stated that you had to live according to the government in Vietnam and people could not live like that.

19. The Tribunal put to him that his advisor had said that a departmental data breach meant that there was a possibility that the Vietnamese government had accessed Departmental information but that it was the Tribunal’s understanding that the information was basic identity information that did not contain any information about whether the applicant had lodged a protection visa application and that as previously discussed the Department of Foreign Affairs and Trade had said that they had no information to suggest that people known or believed to have sought asylum in other countries received different treatment from the Vietnamese government for having sought asylum. The applicant stated he remembered when that happened.

20. Following the hearing, the Tribunal sent the following:

    In an interview with the Department of Immigration on 31 May 2013 it is recorded in writing that you stated that you were living at [Village 2], [Town 1] Town up until [date] May 2013.

    It is also recorded in writing that your last employment in Vietnam up until you left for Australia was in an [agriculture business], that you worked for yourself and the address was [Village 2], [Town 1] Town.

    It is also recorded in writing that the following exchange occurred:

    Q. Why did you leave your country of nationality?

    A. With regards to the lands and property and the government policy so I left. There is a company, a tourist company called [Name] company in Saigon. They wanted to set up tourist resort in my area and they arranged with the local government to use our land to build up the resort. They didn’t reimburse the land that they took, not at the right price. We lodged many complaints but we didn’t receive any satisfactory response. There’s [several] households to lodge a complaint and the complaints are placed on the paper but to no avail, useless. Then the police oppressed the people and took the land off us to sell to the company. And there’s a household who built up the house where the lands the government are supposed to confiscate. The police just destroyed the house of that household. That’s all I have to say.

    Q. When has this been happening?

    A. In April 2008 they came to take the land.

    Q. Has it been ongoing since that date?

    A. It continued until 2012. The people whose land has been taken by the government made complaints to the media and many people went to the capital of Hanoi to lodge a complaint but all these actions are useless.

    Q. Did something specific happened to you to make you leave in 2013?

    A. The government threatened everyone if anyone didn’t obey their instruction they might be arrested or tortured.

    This is relevant because the Tribunal has also listened to the Department’s oral recording of that interview and may find that the Department’s written record is an accurate account of the conversation between you. The Tribunal may also find that since this was the earliest recording of your address, employment and the reasons why you left Vietnam and came to Australia, it may prefer it to your subsequent claims. This is relevant because the Tribunal may not be satisfied that on [date] February 2012 the government sent some policemen and thugs together with machines to forcibly take your land, that you tried to stop them, that you ran way and hid or that you decided to leave the area and flee to Nghe An Province. Neither may the Tribunal be satisfied that you are wanted by the authorities for resisting them.

    This is relevant because subject to your comments, the Tribunal would affirm the decision under review.

    Your Catholic Faith

    In an interview with the Department of Immigration on 31 May 2013 it is also recorded in writing that the following exchange occurred:

    Q. Do you have any cultural/religious considerations the department should be aware of?

    Yes. I wish the government will let me attend Mass.

    This is relevant because the Tribunal has also listened to the Department’s oral recording of that interview and may find that the Department’s written record is an accurate account of the conversation between you. The oral recording is as follows:

    Q. Do you have any cultural or religious organisations that the department should know about?

    A. Yes.

    Q. What?

    A. When I am here I wish that the government should let me attend Mass. 

    This is relevant because the Tribunal may not be satisfied that you told the Department at that interview that you feared returning to Vietnam because you were Catholic. If the Tribunal finds that it is not satisfied that you told the Department at that interview that you feared returning to Vietnam because you were Catholic then subject to your comments, the Tribunal would affirm the decision under review.

21. The applicant’s adviser responded as follows:

    Issue one

    The applicant instructs that the information he forwarded at his most recent hearing with the Tribunal is true and correct. He wishes to reiterate that the land dispute with the government commenced in 2008 however escalated to the point, he felt compelled to flee his village in 2012. The applicant instructs that he did not disclose the full extent of his issues with the authorities in 2012 at his entry interview as he believed the entry interview was a preliminary interview and he would be provided with a further opportunity to forward his claims for protection in more detail at a later stage.

    Further the applicant wishes to reiterate that he did indeed flee to Nghe An province where he remained until his trip to Australia. We note that at the applicant’s recent hearing with the Tribunal he provided detailed evidence with respect to his time in Nghe An Province further adding to the credibility of his claim that he was forced to flee there. The applicant instructs that upon arrival to Australia, he did not disclose his address in Nghe An as it was his understanding he was only required to provide the address for the area in which he was born and raised. Further, he believed that he was He instructs it in Vietnam, even if you move away from an area, you are still considered to be from that area.

    Issue 2

    The applicant instructs that he is fearful of been targeted due to his Catholic faith upon return to Vietnam. He instructs that he did not believe he was required to provide information with respect to same at his entry interview. He instructs that he has found the immigration process overwhelmingly given the long period of time he was kept in immigration detention, his ability to concentrate and provide information was greatly affected. He instructs that now he is in the community, he has been able to look after his well-being and therefore at the time of his Tribunal hearing better placed to fully articulate his protection claims.

    Conclusion

    We respectfully submit the applicant has provided plausible explanations for the discrepancies raised. We refer the Tribunal to our prehearing submission which outlines numerous factors to be taken into consideration in the assessment of the applicant’s credibility. Moreover, the department data breach would undoubtedly make protection visa applicants concerned that their protection claims may not be kept confidential. Given these matters, we submit that it is plausible the applicant was initially apprehensive to fully convey his protection claims however as he became more familiar with the process he was able to fully articulate same. We submit that it is evident that the applicant felt comfortable at his most recent hearing to relay the full extent of his issues in Vietnam. It is our submission that rather than providing consistent information, the applicant when presented with the opportunity expanded on his claims. We submit the fact the applicant provided detailed evidence with respect to his past experiences at his recent hearing with the Tribunal adds to the credibility of his claims. Accordingly we submit that his entry interview should not be relied upon to discount’s protection claims.

    In light of the totality of the evidence provided by the applicant, we submit that his fear of harm is both genuine and well-founded. By virtue of the fact it is the Vietnamese authorities the applicant fears he cannot rely upon state protection nor can he relocate to avoid persecution.

Country Information

1. According to DFAT Country Report Vietnam 31 August 2015:

Politically active religious organisations

3.20 People who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action to curtail their activities. These groups can include those with an anti-government agenda that organise large numbers of people in public spaces or promote civil activism. For example, a Catholic organisation known as the Redemptorists (see below) has attracted attention from authorities for allegedly using religious institutions and instruction to oppose state policies and to raise concerns about corruption. While it is difficult to obtain accurate information on exact numbers, there is credible evidence of dozens of people serving prison sentences for political-religious activities.

3.21 DFAT assesses that individuals who participate in unregistered religious organisations which are perceived by the state as being opposed to government policy are highly likely to be monitored, harassed, arrested, detained or prosecuted by authorities.

Catholics

3.22 The Catholic Church is registered in Vietnam and in recent years has had some restrictions on charitable activities lifted. A number of new church congregations were approved in 2013, mostly in the Central and Northwest Highlands areas in response to increased demand from the growing Catholic communities in the area, although many more registration requests are still pending.

3.23 Members of independent Catholic groups opposed to government policies have been subject to harassment by authorities. While exact numbers are unavailable, reliable sources suggest that over 30 activists associated with Catholic churches have been arrested since 2011 (out of an estimated Catholic population of approximately 6.5 million). While some have been charged with ‘crimes against the State’, others are yet to be formally charged. According to the 2013 US State Department’s International Religious Freedom report, in July 2013 police forcibly removed a group of Catholics who had been praying in front of a church in Ho Chi Minh City, having travelled from other provinces to worship after land and property had allegedly been seized by local authorities. Several members of the group reportedly required hospitalisation after being beaten by police.
3.24 Nonetheless, DFAT assesses that Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference.

Treatment of Returnees

5.21 ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence under Article 91 of the Penal Code 1999. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. People returned to Vietnam are usually done so on the understanding that they will not face charges as a result of their having made asylum applications—for example, under the tripartite agreement between Vietnam, Cambodia and the UNHCR regarding the return of Montagnards to Vietnam.

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

5.23 Notwithstanding this, DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity (people smuggling) rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally. While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in April and July 2015, as part of investigations into people smuggling operations. On 22 April, the Vietnamese Government invited the UNHCR (in a message conveyed by the Australian Government) to interview individuals who had been on board the vessel returned in April, including those who had been detained. At the time of release of this report, UNHCR had not sought to interview any of those individuals.

Conditions for Returnees

5.28 There are no formal protections under Vietnamese law preventing the victims of people smuggling from being prosecuted. However, DFAT has no information to suggest that people known or believed to have sought asylum in other countries receive different treatment from the Government of Vietnam for having sought asylum. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return (as described under ‘Returning political activists’ above). Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are generally viewed by the government as victims of criminal activity rather than as criminals themselves. We understand that in the past some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to the investigation of people smuggling operations.

5.29 DFAT assesses that, in general, those who have been detained upon return have been detained primarily due to their political views, held or imputed, rather than the fact that they have sought asylum. Vietnamese authorities in general have honoured their obligations under a tripartite memorandum of understanding signed with Cambodia and the UNHCR in 2005 to facilitate the return from Cambodia of ethnic Vietnamese who did not qualify for third-country resettlement. While this agreement was initially for a six month period, Vietnamese authorities have to date largely honoured the spirit of the agreement.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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).

3. 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.

4. 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’).

5. 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.

6. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Vietnam and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

8. The Tribunal has dealt with the claims articulated by the applicant and his adviser both before, during and after the Tribunal hearing. Although the Departmental decision referred to a Vietnamese delegations visit to [the detention centre], neither the applicant nor his adviser claimed that the applicant feared returning to Vietnam as a result of this visit. Given that the Tribunal considers that the applicant was given ample opportunity to raise any claims and did not raise this claim, the Tribunal does not consider that this was a claim raised by the applicant.

9. In his statement, the applicant has claimed that on [date] February 2012 the government sent police and thugs to forcibly take his land, that he tried to stop them and was then forced to flee to Nghe An Province where he remained in hiding. He also stated the police sent a summons for him to attend in March 2012 because he had opposed their orders and that in October 2012 the government sent a summons to all the families affected by the confiscation of the land to attend a general meeting but that he did not attend as he believed he would be arrested. He also stated that after he left Vietnam, he learned that his neighbour had been beaten and his land forcibly taken, and that he died one week later as a result of injuries sustained.

10. However, in an entry interview with the Department of Immigration on 31 May 2013 it is recorded in writing that the applicant stated that he lived at [Village 2], [Town 1] Town up until [date] May 2013, that his last employment in Vietnam up until [date] May 2013 or up until he left Vietnam was in an [agriculture business], that he worked for himself and the address was [Village 2], [Town 1] Town. It is also recorded in writing that when asked why he left Vietnam, he stated a company wanted to set up a tourist resort in his area, that the local government took their land, that did not reimburse them at the right price, that they lodged many complaints but with no satisfactory response. He also said that the police oppressed the people and took the land and that there was a house that was destroyed. He also stated this happened in April 2008 until 2012 and complaints were made to the media and many people went to Hanoi to lodge a complaint but these actions were useless. When asked did something specific happen to make him leave in 2013 he stated that the government threatened that if people did not obey their instructions they might be arrested or tortured.

11. The Tribunal has listened to the Department’s oral recording of that interview and finds that the Department’s written record is an accurate account of the conversation that occurred between the applicant and Department and rejects the applicant’s assertion at hearing that the applicant stated he told the interview officer that he fled to Nghe An. The Tribunal also finds that the applicant failed to mention the reasons he declared in his protection visa statement as the reasons he departed Vietnam at his entry interview.

12. The applicant has stated that when he entered Australia he did not tell the whole truth because he was still worried that he might be returned to Vietnam and that he may have misunderstood some of the questions however the Tribunal has formed the view that the questions which the applicant was asked at the entry interview, including the questions relating to his address and employment history were clear, as were his answers. In the Tribunal’s view the explanation that he did not tell the whole truth because he was worried he might be returned to Vietnam is inadequate given that it does not adequately explain why he would not have presented his case to the Australian authorities at the earliest opportunity especially given that the applicant would also risk being returned by not raising claims. The adviser has subsequently stated that the applicant did not disclose the full extent of his issues as he believed the entry interview was a preliminary interview and he would be provided with a further opportunity to forward his claims for protection in more detail at a later stage. This however is in stark contrast to the applicant’s explanation at hearing which was that he was still worried at that stage that he might be returned to Vietnam. The changing nature of the applicant’s explanations as to why he failed to mention at his entry interview the reasons he declared in his protection visa statement as the reasons he departed Vietnam are such that the Tribunal does not accept the applicant is credible. In reaching this conclusion, the Tribunal has also considered that when initially asked at hearing where the applicant lived, he stated that up until his departure for Australia in 2013 he lived in [Village 1] village, Ha Tinh Province.

13. The Tribunal is satisfied that the claims which the applicant made during his entry interview are the true reasons why the applicant came to Australia and why he fears returning to Vietnam. The Tribunal finds that all of the applicant's later claims are untrue embellishments. Accordingly, the Tribunal prefers this record to his later accounts of his address, employment and the reasons why he left Vietnam because this interview provides the applicant's earliest statements about his address, employment and the reasons why he left Vietnam.

14. As a result, the Tribunal accepts that while land has been taken by the government and that people whose land was taken made complaints to the media and many went to Hanoi to lodge a complaint and the government threatened that if they did not obey they might be arrested or tortured, the Tribunal does not accept that this has happened to the applicant, especially given that the Tribunal finds he continued to live at the same address up until he came to Australia. The Tribunal does not accept that the government put pressure on him about his land, nor that on [date] February 2012 the government sent police and thugs to forcibly take his land, nor that he tried to stop them and hit a police officer and nor that he was then forced to flee to Nghe An Province where he remained in hiding. The Tribunal does not accept that the police sent a summons for the applicant to attend the Station in March 2012 because he opposed their orders, nor that in October 2012 the government sent a summons to all the families affected by the confiscation of the land to attend a general meeting that the applicant did not attend. Neither, given the applicant’s lack of credibility, does the Tribunal accept that since his arrival in Australia he learned that his neighbour was beaten and his land forcibly taken and that his neighbour subsequently died as a result of the injuries he sustained.

Catholic Religion

1. At hearing the applicant stated that he feared returning to Vietnam because of his religion, however this claim was not in his written statement that accompanied his protection visa application. When this was raised at hearing, the adviser stated that the application mentioned his religious fear at interview with the Department of Immigration on 31 May 2013 however having listened to the Department’s oral recording of that interview the Tribunal finds that when the department asked the applicant if he had any cultural or religious consideration that the department should know about, he answered that when he was here, he wished that the government should let him attend Mass. The adviser suggested at hearing that the applicant was confused by this question however the Tribunal has formed the view that the question was clear, as was his answer. While the applicant’s agent has subsequently suggested that the applicant did not believe he was required to provide information with respect to his fear of being targeted due to his Catholic faith at his entry interview, the Tribunal is of the view that if the applicant feared returning to Vietnam because of his faith, then he would have presented his case to the Australian authorities at the earliest opportunity In addition, this claim was not even in his written statement that accompanied his protection visa application.

2. While the Tribunal accepts that the applicant is Catholic, it is not satisfied that he told the Department at that interview that he feared returning to Vietnam because he was Catholic. In addition, the Tribunal discussed with the applicant at hearing that the DFAT country information dated 31 August 2015 did not indicate that the authorities persecute Catholics per se, for the practice of their faith. Although the applicant’s adviser has included excerpts from other sources, in the Tribunal's view, these indicate that the authorities take action against Catholics who are perceived to be challenging the States authority. In the Tribunal's view the information does not indicate that the authorities persecute Christians per se, for the practice of their faith.

3. While the applicant stated that Catholics who wanted to protest against Formosa were beaten up, the Tribunal does not accept that the applicant has protested or that pressure was put on him to sell his land because he was Catholic or that he has been targeted because of a political or imputed political opinion or that his children will not be able to live in Vietnam.

4. Based on the applicant's evidence and in light of the country information set out above the Tribunal does not accept that the applicant faces a real chance of persecution in Vietnam now or in the reasonably foreseeable future for reason of his Catholic religion.

Harm arising from being a returning asylum seeker

1. The Tribunal notes that on his own evidence the applicant departed Vietnam with a genuine passport and did not need to show his Vietnamese passport before he left Vietnam. As such, it seems that the applicant legally departed Vietnam. However, if the Tribunal is wrong and the applicant departed illegally, DFAT assesses that Vietnamese nationals who depart the country unlawfully, 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.

1. As discussed with the applicant, the Decree on Sanctions is a law that, on its face, applies equally to all persons and the information before the Tribunal indicates that it is not being selectively enforced or applied in a discriminatory way, and, the Tribunal finds that the law he would be prosecuted under is not discriminatory in its terms and applies to all people who departed Vietnam without undergoing official exit procedures.

2. Accordingly, the Tribunal finds that the Decree on Sanctions is a law of general application that is not being selectively enforced or applied by the Vietnamese authorities, and in being prosecuted under that law, does not accept that the applicant would suffer persecution.

3. Nonetheless, the Tribunal accepts that the Vietnamese authorities may be aware upon his return that the applicant is a person who sought protection in Australia, given the time he has been absent from the country and the data breach. However, the information in the DFAT report (see paragraphs 5.23 and 5.28) is that the Vietnamese authorities target the organisers of escape attempts for punishment rather than all asylum seekers.

4. The adviser has provided an article titled Vietnam jails four asylum seekers over voyage to Australia despite no retribution promises by Jessica Longbottom, ABC 26 May 2016 however this article supports the information provided by DFAT that the Vietnamese authorities target the organisers for punishment rather than all asylum seekers. In the Tribunal's view, none of the media reports set out in the attached country information supports a conclusion that there is a real chance that a person such as the applicant who departed Vietnam legally would face serious harm because he sought asylum in Australia.

5. On the basis of the country information referred to above, the Tribunal is satisfied that the applicant does not face a real chance of harm as a failed asylum seeker should he return to Vietnam.

Harm arising from release of data by the Department

1. The Tribunal accepts that the applicant's name, date of birth, address and other identifying information was incorrectly released by the Department as a part of the 'data breach' that occurred in January 2014. [1]  The applicant claims that he can be identified by the Vietnamese government as a result of this breach and his safety is therefore at risk.

   [1] See Department of Immigration and Border Protection: Own motion investigation report, November 2014, >

   The Tribunal notes that the information released related to basic identity information and contained no details as to whether those persons had lodged protection claims or the details of such claims. Information before the Tribunal also indicates that this information may not have been downloaded in Vietnam, although the available information states that some of the material was downloaded by 'anonymised' users. The Tribunal also notes that even if the material was not downloaded in Vietnam, it cannot be assumed that the information did not find its way to the Vietnamese government.

2. However, the Tribunal is satisfied that there is no evidence that the data leak included any information about protection claims of the applicant or any other person.

3. Having regard to all the circumstances in this case, and to the findings made above in relation to the applicant's status as a person who sought asylum in Australia, the Tribunal finds that the release of this data does not contribute to, or of itself give rise to, a real chance of serious harm if the applicant returns to Vietnam now or in the reasonably foreseeable future.

4. The Tribunal is satisfied that even if the information did, or does, fall into the hands of Vietnamese government authorities, the applicant would not face a real chance of serious harm, as it considers that the Vietnamese government has no adverse interest in him for the reasons set out above.

Cumulative claims

1. The Tribunal has considered the totality of the applicant's accepted circumstances as a Catholic, a failed asylum-seeker, a person named in the data breach, and a person that may have left Vietnam illegally and finds that even taking into account the cumulative effect of these circumstances, the applicant does not face a real chance that he will be persecuted for one or more of the five Convention reasons if he returns to Vietnam now or in the reasonably foreseeable future.

2. 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).

Assessment of complementary protection claim

1. 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). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

2. In MIAC v SZQRB, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugees Convention definition.

3. Given the Tribunal's findings above, it is satisfied that the applicant does not face singularly or cumulatively a real chance of serious harm in Vietnam for reasons of his being Catholic, the data breach, nor as a failed asylum seeker nor as a person that may have left Vietnam illegally.

4. Having regard to all of the evidence, the Tribunal does not consider, based on all of the applicant's claims, that there is a real risk that the applicant would be arbitrarily deprived of his life; or the death penalty would be carried out or he would be subject to torture, or anyone would inflict cruel or inhuman treatment or punishment, or degrading treatment or punishment on the applicant. In reaching this conclusion, the Tribunal has found that even if the applicant is prosecuted for leaving Vietnam without undergoing official exit procedures, he may be subject to a fine upon return but the Tribunal does not regard this as significant harm.

5. For these reasons, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.

6. The Tribunal is therefore satisfied that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Angela Cranston
Member