1507058 (Refugee)

[2016] AATA 4844

1507058 (Refugee) [2016] AATA 4844 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507058

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Denis Dragovic

DATE:22 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 December 2016 at 2:17pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Religion – Church of Latter Day Saints – Recognised in Vietnam – Political opinion – Activities in Australia – Social media posts – Not anti-regime – Delay in protection application – Lodged after other visa options exhausted

LEGISLATION
Migration Act 1958, ss 36(2)(a)-(c), 91R(1), 91R(1)(b)), 91R(1)(c), 91R(2), 499
Migration Regulations 1994, Schedule 2

CASES
Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446
Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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] February 2014 and the delegate refused to grant the visa [in] May 2015.

3. The applicant appeared before the Tribunal on 16 November 2016 in a joint-hearing with her husband who had submitted a separate protection visa application to give evidence and present arguments. The Tribunal also received oral evidence from [a Bishop] of the Church of Jesus Christ of Latter Day Saints and [Ms A] from [Organisation 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. Summary of applicant’s submissions: The applicant is a [age] year-old Vietnamese woman who applied to study in Australia a series of consecutive courses beginning with [a] course in 2008 followed by a [course] between 2009 and 2010 and then a [further course] from 2011 through to December 2013. The visa granted by the Australian government saw her enter the country in January 2008 and continue studies through to the completion of the [first course] which was anticipated by the department to be through to [date] Jan 2013 and as such the end date of her visa. Having progressed through her studies the applicant applied for a [further] visa [in] November 2012 and was granted a bridging visa while waiting for the decision to be made. [In] April 2013 her application for a [further] visa was rejected, which she appealed to the Tribunal and was subsequently refused on the 24 January 2014.

21. She was provided a bridging visa that expired [in] February 2014. Her protection visa application was made [in] February 2014. She was accompanied to Australia by her husband who she married in Vietnam on September 2007, subsequently divorced in Australia [in] May 2014 and then remarried [in] June 2016. She fears harm were she to return to Vietnam because of her religious conversion to the Church of Jesus Christ of the Latter Day Saints and her political activities while in Australia.

22. The delegate determined the applicant’s identity as Vietnamese, without any information to the contrary I have assessed the applicant’s claims against Vietnam as her country of reference for Refugee Convention reasons and receiving country for Complementary Protection purposes.

23. The decision by the Minister’s delegate was made available to the Tribunal by the applicant. The delegate refused to grant the visa finding that her then claims of having converted to the Church of Latter-Day Saints were contrived for the purpose of furthering her refugee claims and that she was not genuinely committed to the Mormon faith.

24. Having considered the evidence presented by the applicant during the Departmental interview along with material made available to the Tribunal in addition to arguments made by the visa applicant’s Representative by way of correspondence to the Tribunal, participation at the Hearing and earlier material provided to the Department, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Findings of Fact

25. The applicant’s prior faith was worship of ancestors although she did attend a Catholic Church in Vietnam after she met her husband even though she did not convert. She claims that for a year she went to her husband’s Catholic Church service on a weekly basis and attended an annual festival. I asked her if she had any problems with the authorities because she was attending church to which she replied that she did not. I accept the applicant’s description of her faith while in Vietnam and that she did not face any harm because of it.

26. The applicant was asked to describe her faith journey which led to her to becoming a Mormon. In 2009 she claims to have been given a book by brother [name] and that she read it. Over time as she was reading the book from 2010 to 2012 she began to understand what God was saying. Seeing her life experiences through the lens of the book she realised that it reflected what was happening in her life and made her feel good and comfortable. In her statutory declaration she added further details of the original meeting and subsequent path to conversion. In summary she claims that she was very busy between 2010 and 2012 and that didn’t allow her to fully engage with her religious interest. Then she again met a Brother from the Church which prompted her to start the official course of study. This she claims she completed in early 2013. She continued throughout the remainder of the year attending church and participating in the community and was eventually baptised on the [date] March 2014 (though the Baptism certificate notes [another date in] March). No evidence was provided in support of her attendance of any classes or church services. The earliest supporting evidence was the submission of two tithe receipts in May and July of 2014. Furthermore, I note that in her protection visa application, dated [in] February 2014, she does not mention the Church of Latter-day Saints or Mormons but only having joined an ‘Evangelist group’. Based upon not having any evidence of participation with the Church prior to her protection visa application and an application which does not even mention the Church I find that the applicant did not engage with the Church until March 2014 when she was baptised.

27. In support of her claim of commitment to the Church of Jesus Christ of Latter-day Saints evidence was received including:

    a.A congratulatory letter from the [official] of the Australia [city] Mission, [name], dated [in] April 2013 though it refers to her baptism on the [later date] March 2014 and as such I find that the year on the letter was a typographical error.[1]

    b.Baptism certificate which notes the date of baptism as [later date in] March 2014[2]

    c.Two tithing receipts both in 2014[3]

    d.Oral evidence by the Bishop of [suburb], [who] stated that he has known the applicant since January 2015 and that they are both regular church attendees as well have having hosted BBQs at their home, both have held roles in the church and they would allow missionaries to use their home. He sees them as an integral part of his congregation. He believes that that they would continue with their faith in Vietnam.

    I accept this evidence.

    [1] CLF[number] Folio 111

    [2] CLF[number] Folio 107

    [3] CLF[number] Folio 105

28. The applicant claims that her activities with the church have included attending service on Sundays, continued group study, social activities with other members of the church and meeting with prospective members whose names and contact details are given to her by church officials. I accept that this is the extent of her engagement with the church since 2014.

29. Based upon the timing of her engagement with the LDS and her limited knowledge of the faith at the Departmental interview, I find that the applicant’s decision to convert was for the sole purpose of furthering her refugee claims. Taking into consideration the letters of support, her ongoing engagement with the church since the Departmental interview and the knowledge of her faith that she presented at the hearing I find that over time she has developed a genuine commitment and affinity with the Church of Latter-day Saints. As such I find that were she to return to Vietnam she would continue to practice her faith.

30. The applicant claims to have been involved in various political movements in Australia beginning in 2012 with [Organisation 2] when she went to [city] to attend a demonstration before officially joining them in 2013. I asked why she didn’t become involved earlier to which she replied that it takes time to explore the group and get to know how it works and for them to get to know you. She claims that she was busy studying between 2008 and 2011 and hence didn’t engage at all, but then in 2011 and 2012 she became more involved. When I asked for evidence of her earlier involvement she did not have any. When I asked to see her Facebook page she showed me an account that only dated back to 2016. She claimed that her prior account was hacked and that while she could post on it she couldn’t access it and as such we couldn’t check her activity log. I also note that her protection visa application did not include a mention of any involvement with [Organisation 2]. As such I do not accept that the applicant has been politically involved since 2011, but instead accept that she has been involved since 2015 as per photographic evidence.[4]

    [4] Folio 73 and 75

31. The applicant claims that she contributed to [Organisation 2] by participating in protests where she waved the South Vietnamese flag. She also claims to have organised a petition calling for the release of a [Vietnamese] human rights activist as well as contributed to running [an event] that raised awareness of his case. She also claims to have met with parliamentarians to lobby for human rights in Vietnam as a part of [Organisation 2]. I accept that the applicant has contributed to each of these efforts through her participation with [Organisation 2].

32. The applicant claims that she is a member of [Organisation 1], a group that supports [human] rights in Vietnam. The [official] of [Organisation 1] appeared as a witness and stated that the applicant was elected [official] of [Organisation 1] last year. Despite the witness noting in her letter that she has known the applicant for three years the applicant clarified that she only joined [Organisation 1] in 2014. In addition in her evidence she noted a correction to her letter of support stating that [Organisation 1] was established in 2009 not 2019. The applicant’s photo appears on the website of the organisation under an entry dated Sunday, April [date], 2016.[5] I accept that the applicant was a member and is now an office holder of [Organisation 1] and that she has been involved since sometime after February of 2014.

    Consequences of conversion to the Church of Jesus Christ of Latter-day Saints

    [5] [Information deleted].

33. I asked what the applicant’s fears were to which she responded that she agreed with the narrative provided by her husband and had nothing to add. This included that having made a serious commitment to God and to spread God’s gospel they are sure that they will face a lot of difficulties and hindrances. They noted that you can’t dress in a suit and go everywhere and appeal and preach, to which I asked whether you could find alternative ways and they responded that they could get access to people and explain the gospels, but they fear being implicated with the crime of inciting people to oppose the government. I noted that the Vietnamese government has recognised the Church of Latter-day Saints officially to which they responded that it was only in theory and that the information of this religion is not officially broadcast or disseminated. I asked why the government should disseminate information to which they acknowledged that it wasn’t the government’s role, but then suggested that the building of churches and allowing the congregation of parishioners would bring difficulties and hurdles.

1. As an indicator of the harm they face they noted the fate of Dr Nguyen Bui Dinh Loc who they claimed was persecuted and had to flee Vietnam by escaping through Laos.  His crime was to print a Vietnamese version of the Book of Mormon and his punishment was two years in prison having been accused of receiving funds from the CIA to incite action against the government. Drawing upon a submission made by the applicant that provided the background story to Dr Nguyen I noted that his conviction was in 2004.[6] Since then the government in 2014 legally recognised the Church. I accept that in 2004 a missionary was arrested and convicted to serve two years in jail.

   [6] Folio 84

2. As I have accept that the applicant has over time developed a genuine commitment to Church of Latter-Day Saints I now turn my mind to consider, as per Justice Ryan in Pei Lan He v Minister for Immigration and Multicultural Affairs, ‘how the applicant would be likely to manifest his or her religious beliefs upon return and the likelihood of that manifestation attracting a persecutory reaction from the authorities.’[7]

   [7] Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 (23 April 2001) at [31]

3. Before doing so I list country information on the situation of the Church of Latter-Day Saints in Vietnam and the plight of Christians more broadly:

   a.The Interim Representative Committee of the Church of Jesus Christ of Latter-day Saints was officially recognized by the Vietnamese Government Committee for Religious Affairs on 30 May 2014.

   b.The LDS announced on 7 January 2016 the formation of a new mission to Vietnam. This includes having missionaries strengthen local members and branches.

   c.In the LDS statement acknowledging its accreditation it notes that ‘the Vietnam government has invited the Church to have more members in more locations’. It also noted that it is committed to continuing to abide by the laws of religious activity in Vietnam—a commitment which constitutes the 12^th of 13 Articles of Faith within the Church.

   d.Unofficial policies of the Communist Party hamper the advancement of religious adherents, though practitioners of various religions serve in local and provincial government positions including in the National Assembly.[8]

   e.‘Most representatives of registered religious groups reported adherence to a religious group generally did not seriously disadvantage individuals in nongovernmental civil, economic and secular life.’[9]

   [8] United States Department of States, “Vietnam 2015: International Religious Freedom Report”, 2015 p14

   [9] United States Department of States, “Vietnam 2015: International Religious Freedom Report”, 2015 p14

4. Alternative country information was provided by the Representative, but it was not directly relevant to the applicant’s case. The submission included discussing the plight of unregistered religious groups whereas the LDS is registered. It discussed the possibility of the misuse of national security laws upon religious believers, but as I discuss further at [39] the LDS faith strictly adopts a view that members must adhere to local laws. The submission noted limitations on the internal governance of the faith which the leaders of the LDS have found to be acceptable enough that they would seek official recognition and as such I do not see it as affecting the applicant.[10] 

   [10] Folio 62

5. In response to being presented with information that the government has accredited the LDS Church and that she would not face harm the applicant claimed that it is well-known that the government often reneges on commitments. The applicant said that even though they say in theory that they approve of a religion they don’t follow what they promise. I do not accept that there is any basis upon which this statement has been substantiated and as it is contrary to independent country information I do not consider it further.

6. I note that a central tenet of the LDS church, one which has allowed its members to establish missionary footholds in otherwise closed societies is that it abides by the laws of the land (Article 12 of its Articles of Faith). In this case the applicant is a member of a Church whose senior officials have determined that the limitations to worship imposed by the government were they to abide by the law of the land are such that they do not infringe upon a member to such a degree as to not allow them to fulfil their religious obligations.

7. The husband of the applicant added his own concerns which include that in Vietnam there are no LDS churches and so he is concerned about where he could meet and pray. Without a place to meet, he believed, they would have to gather in a clandestine way in people’s house. He also raised the limitations on the manner of disseminating God’s gospel because he believes that the government is very suspicious of the religion because it originates in America and if they get access to people then they will see it as trying to oppose the government. I do not accept that there are limitations upon the way they can disseminate the gospel such that it would impinge upon their faith as the Church itself has agreed to the conditions existing within the country and is committed to upholding the laws.

8. Considering the country information and noting that the applicants did not provide sufficient evidence to the contrary I find that the applicant does not face any harm for the Convention reason of religion or under Complementary Protection were she to return to Vietnam in the reasonably foreseeable future while continuing to live her faith.

   Political engagement in Australia

9. I now turn my mind to considering whether there is a real chance of serious harm arising from the Convention reasons of political opinion or a real risk of significant harm for her sur place activities. In this regard there are two limbs to her claim, firstly whether her attendance at political activities in Australia have exposed her to risk through the possibility that the Vietnamese government has identified her as a political activist. Secondly, whether her commitment to political activism is genuine and as such could lead to harm were she to return to Vietnam and continue to pursue avenues to express her political opinion.

10. I have accepted that the applicant attended political activities as noted above. To assess the level of risk and harm that the applicant faces I have consolidated country information together with the evidence provided by the applicant.

11. She fears that the Vietnamese government identified her through her political activities including at the annual protest in [city] where she was holding a South Vietnam flag. I asked whether she spoke at the protests or helped organise them to which she responded that she did not.

12. Country information collated by the Tribunal suggests that the Vietnamese government posts Ministry of Public Security personnel to embassies and consulates with the task of monitoring the activities of overseas Vietnamese citizens. Even students living abroad are asked to report their fellow citizens. But the same source distinguishes between ‘anti-regime activities’ and ‘critical views’ by noting that ‘Vietnamese citizens who have been critical of their government whilst living overseas are not treated in this fashion. There is a tolerance of “critical views” but not anti-regime activity.”’[11]

    [11] Thayer, C. A. 2005, ‘Comments for the Australian Refugee Review Tribunal’, 18 March, cited in Refugee Review Tribunal 2007, RRT Research Response VNM31954. <CISNET RRT Q and A RR2821>. Emeritus Professor Thayer’s current profile: University of New South Wales n.d. [current], ‘Carlyle A. Thayer’ < [accessed 11 November 2016]. Folio [114-115].

13. Regarding the waving of the South Vietnam flag, country information notes that in Vietnam punishment has recently been handed out for flying the Republic of South Vietnam flag. In one case three women received prison terms of three and four years with two years’ probation for flying the flag.[12] As such I accept that the severity and harm faced by the applicant were she to have publicly waved the Vietnamese flag in Vietnam and was tried in a Vietnamese court would amount to serious and/or significant harm.

    [12] Radio Free Asia, ‘Vietnam Jails Blogger, 3 Land Activists for ‘Anti-State Propaganda’ available at  [accessed on 19 September 2016]

14. I now proceed to address whether the applicant faces a real chance of serious harm or a real risk of significant harm were she to return to Vietnam on the basis of her flag waving actions in Australia. That the applicant was involved in protests commemorating the deaths of Vietnamese people who were coming to Australia I find would not to be of concern to the Vietnamese government as it is not anti-regime activity. Holding the Republic of Vietnam flag is of note to the government of Vietnam. But I could not find evidence that the Vietnamese government would or would not try citizens for such actions while abroad. Furthermore pictures of the annual protests in [city] show that there are many flags with no particular significance or special place given to an individual holding one. I find that through her participation at protests she may be considered as holding critical views but not as having undertaken anti-regime activities. As such I find that there isn’t a real chance of serious harm or a real risk of significant harm as a result of her participation in protests in Australia including waving the South Vietnamese flag.

15. With regards to the applicant’s participation in [Organisation 1] and as their recently elected [official] for 2016/17 I heard evidence from [Ms A], [official] of [Organisation 1]. She went on to explain the purpose of [Organisation 1] which is to support [details deleted]. At the time of the hearing [Organisation 1] was [details deleted]. [Details of Organisation 1 deleted]. When asked if [Organisation 1] has encountered any problems, the witness said that the group has not faced any problems. I asked for an example of the type of harm that she may face to which she gave the case of how returned asylum seekers were being prosecuted despite assurances from the Australian government that they wouldn’t. I explained that those were the individuals who were accused of trafficking people and that those cases are different to the applicant’s circumstances. When I asked more pointedly whether she knew of any people who returned to Vietnam with a similar situation to the applicant she responded that she did not know of anyone who was involved in political activities in Australia and had gone back to Vietnam to have faced problems.  

16. The witness did raise a problem that she was personally facing. Recently she had begun planning a trip to Vietnam but her visa to enter the country while being initially granted was subsequently cancelled. I asked about her political profile to ascertain her possible political profile in the eyes of the Vietnamese government relative to the applicant’s. In addition to being an executive member of [Organisation 1], she is a volunteer with [Organisation 2] and an activist on social media. This is a similar profile to the applicant albeit spanning a much longer period of time.

17. In considering the possible harm that the applicant faces I note that the website of [Organisation 1] does not blur out the faces of the local recruits and that the [organisation] itself [has a small support base] which may suggest that participating in this group may not raise one’s profile to a level that concerns the government. On the other hand the witness has presented information which I accept to be true that she has had her visa cancelled for no apparent reason other than what could be presumed to be her political activities. I note that the witness did not know of any other people who had been politically involved in Australia upon return to Vietnam facing problems. I asked that any such information be provided in a post-hearing submission. No such information was provided. With the evidence before me I find that the applicant being an office holder of [Organisation 1] and involved since 2014 including having her name and photo on the internet would make the chance or risk of her facing serious or significant harm remote and not real.

18. Regarding her social media posts, I asked the applicant to show me the most recent post that she had written against the Vietnamese government. She found a post from [date] November 2016 in which there was a picture of [an] area and the words: ‘[Details deleted].’ She claims that her post related to [a] company incident in which [caused environmental damage]. I asked for the one that she believed would be most likely to get her into trouble with the Vietnamese government. She identified a post from the [date] November which had written: ‘[information deleted].’ In a post hearing submission other Facebook posts were submitted. While I accept that the applicant has posted material that is critical of the government largely by way of sharing other’s posts I find that posting such material will not constitute ‘anti-regime activities’.

    Genuine commitment to future political activism

19. I note that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The applicant arrived to Australia in 2008. Her initial visa allowed her to remain through to [Jan] 2013. As noted above, having progressed through her studies the applicant applied for a [further] visa [in] November 2012. [In] April 2013 her application for a [further] visa was rejected, which she appealed to the Tribunal and was subsequently refused on the 24 January 2014. She was provided a bridging visa that expired [in] February 2014. Her protection visa application was made [in] February 2014. The timing of her application leads me to consider this matter more closely.

20. In response to the question of why did she wait so long to apply for the protection visa the applicant claims that she did not become aware of the risk that she faced until she read a report on the persecution of Nguyen Bui Dinh Loc. I put to the applicant that he was arrested in 2004 and that I found it farfetched that she would be reading about it in 2013. She could not provide an answer to the question.

21. Considering the applicant waited nearly six years before she made an application and that the application was only made after she had exhausted multiple other avenues for remaining in Australia leads me to believe her application and political activities in Australia may have been contrived for the purpose of furthering her refugee claims.

22. I have already found that the applicant began participating in [Organisation 2] only after her protection visa application had been submitted which listed an entirely different set of claims. I do not accept that she had not been motivated to join a political movement for six years until, coincidentally, after she submitted her protection visa. Furthermore, at the March 2015 interview with the Department the applicant did not mention any political activity. She responded to this situation in her statutory declaration by noting that she didn’t realize that it could bring her to harm and only realized after she read a report of Dung Viet Nguyen being arrested in Vietnam for holding a South Vietnam flag that she thought that she might be in danger. I do not accept that someone with her level of education would be unaware of the possibility of certain political activities in Australia putting her at risk.

23. Taking into consideration the applicant’s delay in lodging the protection visa and its lodgement being at the end of several other visa options being exhausted together with her lack of political engagement with [Organisation 2] until after the lodgement of the protection visa application I find that the applicant’s participation in political activities is not genuine and was solely for the purpose of furthering her protection claims. I have not been convinced that since her contrived engagement in political activities that her commitment has shifted to be a genuinely held motivation. As such I do not accept that the applicant would continue to seek to express a political opinion critical of the government were she to return to Vietnam even if she were free from fear.

    Having sought asylum

24. Recent country information provides insight into the general situation of returnees:

    a.DFAT has not received information suggesting different treatment being applied by the Vietnamese Government to persons known or believed to have sought asylum in other countries unless they were involved in trafficking. It is understood that the Vietnamese Government's view is that such individuals are generally doing so to achieve residence in countries such as Australia for economic reasons.[13]

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

25. The applicant arrived to Australia on a valid student visa. She had applied to study in Australia through to December 2013. She overstayed this period by nearly three years. I do not consider that this in of itself will be an indicator to the Vietnamese government that she sought asylum. Nevertheless, were this to occur I do not consider that the applicant, given her background, profile or act of seeking asylum in a Western country, would be detained for an extended period, but would be released shortly after being interviewed without being harmed.[14] As such I find that the applicant, as a member of a particular social group, namely, failed asylum seekers of Western countries, does not meet the real chance test. Nor do I accept that the applicant faces a real risk of significant harm related to her seeking asylum in the reasonable and foreseeable future was she to return to Vietnam.

    The totality of circumstances faced by the applicant

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

26. In MILGEA v Che Guang Xiang the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[15] As such I turn my mind to considering the cumulative impact upon the applicant’s profile in relation to Refugee Convention grounds based upon the matters identified above including but not limited to being someone who has developed a commitment to the Mormon faith while in Australia, been elected to the position of [official] of [Organisation 1], attended activities of [Organisation 2], shared and posted views critical of the Vietnamese government on Facebook, but will not continue her political activities in Vietnam though she would be identified as a failed asylum seeker in a Western country. Drawing upon the findings related to each claim earlier and considering the claims cumulatively I find that the chance the applicant faces serious harm were she to return to Vietnam is remote.

    [15] Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at 17.

27. I have also considered the Department’s Complementary Protection Guidelines as required by Ministerial Direction No. 56. Having considered each claim individually against the Complementary Protection test of real risk of significant harm I now consider them cumulatively. In applying the real risk test to the question of significant harm I find that the chance of the applicant facing significant harm for reasons of having developed a commitment to the Mormon faith while in Australia, been elected to the position of [official] of [Organisation 1], attended numerous activities of [Organisation 2], shared and posted views critical of the Vietnamese government on Facebook, but will not continue her political activities in Vietnam though she would be identified as a failed asylum seeker in a Western country, both independently and cumulatively, as defined exhaustively in s.36(2A), is remote.

1. 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).

2. 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).

3. 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

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

   Denis Dragovic
   Senior Member