1507243 (Refugee)

[2016] AATA 4804

1507243 (Refugee) [2016] AATA 4804 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507243

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

Protection visa – Vietnam – Religion – Mormons – Church of Jesus Christ of Latter-Day Saints – Particular social group – Failed asylum seeker – Political opinion – Political rallies – Church accreditation – Household registration

LEGISLATION

Migration Act 1958, ss 36, 65, 91R(1)(b), 499
Migration Regulations 1994 Schedule 2

CASES

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

MILGEA v Che Guang Xiang, Unreported, Federal Court of Australia, 12 August 1994

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

SECONDARY MATERIALS

United States Department of States, “Vietnam 2015: International Religious Freedom Report”, 2015

Human Rights Watch 2006, “Children of the Dust”: Abuse of Hanoi Street Children in Detention, p.35, footnote 90 < Accessed 13 November 2006

Immigration and Refugee Board of Canada 2009, Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment, VNM103087.E, UNHCR Refworld, 24 February < Accessed 1 December 2016

‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March < Accessed 20 March 2013

Saigon Daily is run by the CPV Ho Chi Minh party committee < Exchange Between Police Leader and SGGP Readers About Residence Law Implementation’ 2007, Saigon Daily, 29 July < Accessed 10 February 2012

‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March < Accessed 20 March 2013

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]

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 his wife who had submitted a separate protection visa application to give evidence and present arguments. The Tribunal also received oral evidence on behalf of the applicant from [a bishop] of the Church of Jesus Christ of Latter-Day Saints. 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 his 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: Prior to traveling to Australia in January 2008 while accompanying his wife who was on a student visa, the applicant worked for a private company as [an occupation]. The company traded [products] from [another country] through agents in Vietnam who would sell the products locally. The visa granted to him as the partner of his wife saw him enter the country in January 2008 and allowed him to remain through to [January] 2013. His wife progressed through her studies and then applied for a [further temporary] visa [in] November 2012 leading to both husband and wife being granted a bridging visa through to [February] 2014 while waiting for the decision to be made. The wife’s [further temporary] visa application was refused. The applicant lodged his protection visa application [in] February 2014. The applicant married his wife in Vietnam on September 2007, subsequently divorced in Australia [in] May 2014 and then remarried [in] June 2016. He fears harm were he to return to Vietnam because of his religious conversion to the Church of Jesus Christ of the Latter Day Saints.

21. 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 his country of reference for Refugee Convention reasons and receiving country for Complementary Protection purposes.

22. 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

23. The applicant claims to have been born into a Catholic family who didn’t have any forebears or relatives that were priests, activists or imprisoned by government. He does not claim to have played any role in the parish other than a general member of the congregation. He claims that he and his family have been harassed by authorities because of their religion. The example he gave was that in their locality the government makes appeals to contribute labour and materials to build local roads. In the instance that he recalled all the people refused because they didn’t have any trust in the authorities, but whenever the priest made an appeal then they all obeyed. As a result of this about a hundred or more parishioners were asked to come to the police station and were made to learn about Vietnamese ideology and policies. He claims that this occurred on numerous times for half an hour to an hour and that it gave them a headache. I accept that the applicant was a practicing Catholic and that in his parish the extent of harassment he faced was participating in indoctrination sessions that gave him a headache.

24. He also claims that job seeking activities and paper work certification are also problematic for Catholics. I noted that it is difficult for all people in Vietnam not just Catholics as the bureaucracy is rife and corruption rampant. He nevertheless claimed that Catholics had to make additional payments for simple paperwork. I accept that as a Catholic in some circumstances he may be faced by additional bureaucracy or requests for bribes.

25. He claims that he was officially recruited into The Church of Jesus Christ of Latter-day Saints (LDS) in 2014 but he was involved before that as it involved a long period of learning. I asked why he walked away from the Catholic Church to which he responded that during the process of meeting brothers in LDS and going to their church he was left with a very strong impression. He felt a warm love and sense of family and saw a big difference in the services—Catholic Church has one priest who preaches but in LDS the followers share experiences. I asked him what are the main difference in their beliefs, to which he said that the Book of Mormon and the role of Prophet Joseph Smith.  He claimed that his role in LDS is as a brother, preaching and appealing to people and to understand Jesus and the Gospels. When he was young he would just follow family tradition without understanding the rules or the meaning of his religion. When he got to know the Book of Mormon he realized that it is essentially the direct communication of God including the Gospels while in the Catholic faith he just learned to say the prayers and listen to the priest teach the gospels.

26. In support of his claims of commitment to the Church of Jesus Christ of Latter-day Saints evidence was received including:

    a.A letter dated [in] August 2016 inviting him to attend a conference at which he would receive his Melchizedek Priesthood after which he was ordained to the office of Elder.[1]

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

    c.Two tithing receipts from 2014 were presented by the applicant’s wife but I accept as being a donation from their collective household[3]

    d.Oral evidence by the [Bishop] 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.

    [1] Folio 85

    [2] Folio 91

    [3] [File number] Folio 105

27. I accept this evidence.

28. Taking into consideration the letters of support, his ongoing engagement with the church as an Elder and the knowledge of his faith that he presented at the hearing I find that he has a genuine commitment to the Church of Jesus Christ of Latter-day Saints. As such I find that were he to return to Vietnam that he would continue to practice his faith.

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

29. I asked what the applicant’s fears were to which he responded 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 they 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.

30. 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.[4] 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.

    [4] Folio 84

31. As I have accepted that the applicant has a genuine commitment to the 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.’[5]

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

32. 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.[6]

    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.’[7]

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

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

1. 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 [35] 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.[8] 

   [8] Folio 62

2. In response to being presented with information that the government has accredited the LDS Church and that he would not face harm the applicant explained that in Vietnam there are no LDS churches and so was concerned about where he could meet and pray. Without a place to meet then 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.

3. 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.

4. The wife of the applicant added her own concerns that despite the LDS Church being accredited it is well-known, according to her, that the government often reneges on commitments. The wife of 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.

5. 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.

   Losing his household registration card

6. The applicant is afraid of having lost his household registration because of his time abroad. The household registration card provides access to state services and administrative procedures. According to a 2006 Human Rights Watch report, possession of household registration is essential in order to ‘legally reside in one’s home…legally hold a job, collect grain rations, attend a government-run school, receive public health care, travel, vote, or formally challenge administrative abuses’.[9]

   [9] Human Rights Watch 2006, “Children of the Dust”: Abuse of Hanoi Street Children in Detention, p.35, footnote 90 < Accessed 13 November 2006 <Attachment>

7. He claims that he may have already had his name crossed off even though there is no such rule but just discrimination against them. He is not sure if it can be reinstated. I asked if he knows if he has been crossed off to which he responded that he hasn’t because his mother engaged solicitors to prevent it from happening.

8. Country information notes that the household registration can be revoked in a number of circumstances including if abroad for an extended period of it.[10] According to Viet Nam Net Bridge, many Vietnamese who study overseas for extended periods experience deregistration.[11] Migrants who have had their permanent residency status revoked can apply to have their residency status re-instated. In 2009, the Saigon Daily[12] quoted Senior Lieutenant-Colonel and Head of the Police Bureau of Administrative Management on Social Order, Vo Van Nhuan, ‘Based on Article 2 of the Law of Residence [2007], Vietnamese people who live in a foreign country but still retain their Vietnamese citizenship can apply for a ho khau when returning to the country to live.’[13] Information suggests that re-instating the household registration can take up to a few months.[14]

   [10] [10] Immigration and Refugee Board of Canada 2009, Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment, VNM103087.E, UNHCR Refworld, 24 February < Accessed 1 December 2016

   [11] ‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March < Accessed 20 March 2013 <Attachment>

   [12] Saigon Daily is run by the CPV Ho Chi Minh party committee <

   [13] ‘Online Exchange Between Police Leader and SGGP Readers About Residence Law Implementation’ 2007, Saigon Daily, 29 July < Accessed 10 February 2012 <Attachment>

   [14] ‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March < Accessed 20 March 2013 <Attachment>

9. I now turn my mind to whether there is a real chance or a real risk of the applicant being denied access to the household registration card. Considering that the applicant has not claimed that his household registration has been withdrawn and that his mother’s intervention has confirmed that his household registration is still valid and country information indicates that even were it to be withdrawn re-instatement can be achieved I find that the applicant does not face a risk of living without a household registration card for an extended period of time is remote.

   Impugned political opinion

10. The applicant and the representative did not claim that he held a particular role in political gatherings while in Australia. He mentioned only in passing at the conclusion of the hearing that he fears for his safety based upon his participation in political rallies. In reviewing country information I find that the government of Vietnam distinguishes between ‘anti-regime activities’ and ‘critical views’. Participating in political gatherings, I find, to be equivalent to holding critical views which are tolerated by the government.[15]

    [15] 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].

11. The applicant has claimed that his association with his wife would place him in danger because of her political activities. Having considered the applicant’s wife’s case and having found that she is not due Australia’s protection I find that the risk of the applicant facing serious harm or significant harm as a result of impugned political opinions be they from his participation in political rallies or being associated with his wife is remote.

    The totality of circumstances faced by the applicant

12. 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.[16] 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 a commitment to the Mormon faith, attended some political rallies, is married to a woman who was politically active and was 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 he to return to Vietnam is remote.

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

13. 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 being someone who has a commitment to the Mormon faith, attended some political rallies, is married to a woman who was politically active, both independently and cumulatively, as defined exhaustively in s.36(2A), is remote.

14. 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).

15. 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).

16. 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

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

    Denis Dragovic
    Senior Member