1507360 (Refugee)

[2017] AATA 3087

1507360 (Refugee) [2017] AATA 3087 (22 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507360

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Luke Hardy

DATE:22 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 June 2017 at 3:41pm

CATCHWORDS

Refugee – Protection Visa – Vietnam – Religion – Christian – Proselytising – Fear of harm from government – Evidence of genuine conversion – Claims not supported by country information – Persecution limited to particular areas of country – Applicant not associated with persecuted areas

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

MIAC v SZQRB [2013] FCAFC 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, [Mr A], is a citizen of Vietnam. He entered Australia on [student] visa [in] December 2012. The visa was valid [March] 2016. [Mr A] applied for the protection visa [in] July 2014 and the delegate refused to grant the visa [in] May 2015. [Mr A] subsequently sought review by this Tribunal.

3. [Mr A] appeared before the Tribunal on 23 May 2017 to give evidence and present arguments. He was accompanied at the hearing by his adviser, a registered migration agent.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

5. The issue in this case is whether [Mr A] is entitled to protection in Australia as a refugee or, in the event that he is not, on complementary protection grounds.

6. For the following reasons, I have concluded that the decision under review should be affirmed.

   Summary of claims

7. [Mr A] comes from the city of Hai Duong, about 45 kilometres east of Hanoi and about halfway between the latter the port city of Hai Phong, in North-eastern Vietnam. He claims to have been baptised in an evangelical Christian church in Australia. He claims fear of persecution in Vietnam for the Convention-related reason of “religion”. He claims his family has no issues with his conversion to Christianity in Australia. He claims that he will be harassed and persecuted by authorities and members of society for practicing his religion in Vietnam and, in particular, for evangelising according to the directives of his church and his understanding of the will of God.

   Original protection visa application

8. [Mr A] provided witness and photographic evidence of having been baptised in [Church 1] in [Australian City 1 in] 2014 (DIBP file at ff. 1 to 6). I accept that evidence to be genuine evidence of his actual baptism. The pastor providing the written evidence states that [Mr A] is sincerely committed to the church and its various ministries in society.

9. [Mr A] essentially said in his protection visa application form that he would have to alter his behaviour in Vietnam in order to avoid persecution from Vietnamese authorities and, in doing so, suffer self-imposed curtailment of his fundamental human right to live and bear witness to his religion. He said that proselytising activities are not permitted in Vietnam.

   Statutory declaration and other evidence

10. In a [September] 2014 statutory declaration, [Mr A] said he might be subjected to persecution and significant harm in forms including torture and cruel and inhuman punishment or treatment in the event of practicing his religion in Vietnam.

11. [Mr A] declared that his interest in Christianity began soon after his arrival in Australia in 2012. He said his interest increased over the next twelve months. He claimed he undertook Bible studies before being baptised. He claimed to be in the “infancy” of his religious journey.

12. [Mr A] cited various activities he regularly undertook with [Church 1] including fellowship meetings and preaching.

13. [Mr A] said he would be detained immediately by authorities in Vietnam on return to that country. He said the law allows him to attend church but not to proselytise in any way at all. He said that the evidence of this is the number of people detained in Vietnam for “spreading sedition”.

14. [Mr A] submitted copies of photographs of himself handing out [Church 1] introductory flyers in and around [Australian City 1].

    Protection visa interview

15. For the purposes of this review, [Mr A] submitted a copy of the delegate’s decision, in which appears detailed accounts of [Mr A]’s oral evidence and of issues raised with him at the protection visa interview.

16. [Mr A] repeated the claim that he was still at an early stage of learning the Bible. He claimed to be unfamiliar with the Old Testament. He indicated he learns more about Jesus’ message than Biblical facts. In his recollection to the delegate, Jesus’ last words were those enunciated at the Last Supper rather than any that were uttered from the cross. He said he liked the story of Samson, and wrongly referred to it as a New Testament story; he implied he had heard it told to him rather than having found it himself. In a quiz of the kind that a number of recent Federal Court rulings would encourage a reasonable person to regard as unfair, the delegate asked [Mr A] a few questions about details from the Bible, including one about “what occurred when Mary while pregnant with Jesus visited John the Baptist’s mother who was pregnant with John the Baptist”. [Mr A] was unable to answer this question and, cumulatively, the delegate identified the failure as an issue of concern going to whether or not he was a genuine convert. 

17. The delegate correctly cited country information to the effect that [Mr A] would be free to attend churches in Vietnam. In response, [Mr A] said he would still not be permitted to evangelise.

    Independent country information

18. I have had regard to recent discussion on the official website of the evangelical Seventh Day Adventist Church relating to the church’s freedom to preach Gospel in Vietnam. IN early 2014, the church’s President Ted N.C. Wilson, during evangelistic outreach in Vietnam,  became first non-indigenous person since 1975 permitted to preach there.[1]

    [1] “In Vietnam, president’s evangelism participation signals turning point”, Seventh-Day Adventist Church, 7 May 2014,

19. There is evident competition for the title of first foreign evangelist permitted to preach in Vietnam, as a pastor named Luis Palau was granted permission to preach to a large crowd in Ho Chi Minh City in 2011:[2]

    Organizers requested permission to hold the event months in advance, but the government granted approval just three hours before it was to begin. These delay tactics seem to have become standard procedure for the Vietnamese government. For the past two years, the central government’s Bureau of Religious Affairs has waited until the last minute to approve Christmas events held by house church groups.

    It was an “absolute miracle” that the event was held, said the leader of Vietnam’s Evangelical Fellowship of house churches. Hundreds of volunteers and technicians worked heroically to move equipment from an open field in one part of the city to the soccer stadium in another part of the city. Organizers had to notify thousands of people of the venue change. They used word of mouth, website announcements, Twitter, Facebook and text-messaging to get the word out. The evening began at 9 p.m., just two hours late.

    Luis Palau began his message at 11 p.m., delivering a clear evangelistic sermon. When the service ended, after midnight, about 800 people came forward to receive Christ. On the following day, Sunday, April 10, more than 12,000 people filled the stadium, and more than 1,000 came forward at the call to follow Christ.

    Dr. Nguyen Xuan Duc, president of the Vietnam World Christian Fellowship, told Compass Direct News that he was very encouraged about the future of the church in Vietnam. “These are watershed days for Protestantism in Vietnam,” he said. “There is no fear, but rather wonderful spontaneity and irrepressible joy. Events like this happen in spite of the government and without the blessing of some overly conservative church leaders. What we see is young, vibrant, lay-led, internationally connected and very media-savvy.”

    [2] “Vietnam: Evangelism Thriving”, Persecution Blog, 15 April 2011,

20. I note that according to the above-cited source, an intended stadium event to be hosted by Mr Palau in Hanoi shortly afterwards was evidently changed to a smaller less central venue at the behest of authorities.[3]

    [3] Ibid.

21. Whereas the government formerly impeded the growth of Protestant churches, partly due to their providing “cover” as it were for secessionist movements amongst hill tribe, or Montagnard communities, independent Catholic church reporting that Protestantism is thriving in Vietnam and that to the extent that evangelising is treated as being illegal in Vietnam, this is generally by some authorities in some localities.[4]

    [4] “In Vietnam, government losing battle against evangelism”, UCA News, 20 November 2015,

22. I note that the Overseas Missionary Foundation openly promotes “church planting” in Vietnam through the setting up of student ministries, English classes, “Personal evangelism” and community projects.[5]

    [5] OMF Opportunities: Vietnam,

23. I note that, after a long period of regulation and restriction, the Evangelical Church of Vietnam reports increasing freedom to operate house churches since 2007.[6]

    [6] “History of Vietnamese Church”, Bless Vietnam Initiative,

24. A new Law on Belief and Religion was passed in Vietnam by the 14th National Assembly in November 2016, providing reportedly modest improvements to the restrictive regulatory environment for religious practice. According to DFAT[7], this law replaces the 2004 Ordinance on Religion and Belief (Ordinance 21) and the revised Implementation Decree 92 (promulgated in January 2013). DFAT observes that the new law shifts the regulation process in multiple areas (e.g. attendance at seminary, ordination, hiring of clergy) from an approval system to a less burdensome notification system, allowing it to move forward with such activities, without explicit government approval. The new law reportedly reduces the amount of time a religious organisation must carry out religious activities as a condition for national-level recognition from 23 years to five years. It would appear that this relaxation would be particularly advantageous to newly-created Protestant churches including evangelical ones.

    [7] DFAT Country Information Report: Vietnam, 21 June 2017 

25. I have had regard to the following The South China Morning Post article[8], a syndicated version of which appears in [Mr A]’s submissions, addressing the ratification of the above-mentioned law:

    [8] “Is Vietnam’s new religion law a smokescreen for political repression?”, South China Morning Post, 3 December 2016,

    A controversial law on religion passed in Vietnam has triggered renewed fears of state repression in the name of national unity.

    Vietnam ignored the wishes of the international community in ratifying the Law on Belief and Religion, which many fear will be used by police and authorities to persecute people of faith. The National Assembly passed it late last month with 85 per cent of the vote, despite unprecedented objections, including some from within the country’s ruling Communist Party.

    Pope and Vietnam’s president meet at the Vatican in bid to warm long-strained ties

    Among the law’s fiercest critics is the Interfaith Council of Vietnam, whose 27 council members – from Christian, Buddhist, Cao Dai and Hoa Hao communities – say religious groups are under no obligation to obey it.

    “As spiritual leaders struggling for religions’ independence and the people’s human and civil rights, we completely reject the [law] that the communist government is using the National Assembly to approve and impose,” the group said. “Accepting [it] means continuing to support the dictatorial regime.”

    The Government Committee for Religious Affairs says the law will increase its management scope and help thwart hardline groups, such as sects and cults and others who use religion to threaten national unity.

    It insists that under the law – drafted by the Vietnamese Fatherland Front – everybody has the right to practise religion and attend religious festivals and the “state respects and protects everyone’s right to freedom of belief and religion, and ensures that all religions are equal before the law”.

    Limbless preacher tests Vietnam’s religious freedoms

    However, more than 50 political, human rights and religious groups – including the ASEAN Parliamentarians for Human Rights, New York-based Human Rights Watch and London-based Amnesty International – have joined the chorus of opposition.

    Human Rights Watch claims the law allows authorities to single out and persecute religious groups they dislike. It says phrases in the legislation like “national great unity”, “national security” and “social morale” are deliberately vague and can be used arbitrarily to crack down on political activists. Article 32 of the law says religious appointments must “have the spirit of national unity and harmony”, and article 22 says religious education must include “Vietnamese history and Vietnamese law” as core subjects.

    The separation of powers between church and state is anathema for the communists who took control of North Vietnam in 1954 and annexed the south 21 years later. Church properties were confiscated by the one-party state and the atheist communists have struggled to cope with religion ever since.

    Hanoi recognises 39 religious organisations within 14 religions, covering 24 million followers, but has not shied away from using arbitrary accusations to imprison or persecute followers, particularly of unregistered groups.

    Clergy often complain that church services are interrupted by police who force their way into mass and conduct spot-checks of parishioners’ personal papers.

    Father Nguyen Van Ly, a leading advocate of the Interfaith Council, was released from prison in May after serving eight years. In another case, the persecution of Christian activist Tran Thi Hong captured the attention of UN human rights officials who urged the government to stop harassing her after she was “repeatedly arrested and tortured”. Her husband, director of the Vietnam-US Lutheran Alliance Church, was jailed in 2011.

    Phil Robertson, deputy director of HRW Asia division, said Hanoi was efficient at restricting religious practices through legislation, registration of unofficial religious groups, harassment and surveillance.

    In the countryside, unsanctioned religions fare worse. Montagnards and followers of the De Ga and Ha Mon forms of Christianity have faced persecution and fled into neighbouring Cambodia. Branches of the Cao Dai church, the Hoa Hao Buddhist church, independent Protestant and Catholic churches in the central highlands, Khmer Krom Buddhist temples and the Unified Buddhist Church of Vietnam had also felt the full force of communist law, said Robertson.

    The new law also contains a clause prohibiting abuses of freedom of religion that damage “the national great unity, harm state defence, national security, public order and social morale”.

    “The bottom line is the Vietnamese government generally sees religion as something to be manipulated and restricted, not respected – and so they are constantly waging a battle across the country to keep religion under state control,” Robertson said.

    Even members of the Communist Party have broken internal ranks. Khuc Thi Duyen, deputy chairwoman of the National Assembly, warned the regulations were “inappropriate and might be unfair to religious institutions”, and criticised as “inappropriate” a regulation that religious institutions would be recognised only after being in operation for 10 years.

    Vietnam is not the only country in the region struggling with religion. Islam in Indonesia and Malaysia often conflicts with the state while Christianity in the Philippines and Buddhism in Myanmar have also tested relations between clergy and the central authorities.

    Keith Loveard, a risk analyst with Concord Consultancy, said Vietnam had large Catholic and Buddhist communities and that made laws governing religion difficult to get right. “The problem is you have to be fair and being fair is a rather difficult thing to do,” he said, adding that authorities had to consider hatred against apostates and the emergence of sects and cults, which were often just money-making machines.

    “Do you regulate, ban or demand certain standards or do you try to create a climate of relevant tolerance or crack down on the worst manifestations of these things?

    “The end result is a bit of a mess. You’re asking for more trouble than you’re getting. You’re opening up a Pandora’s box of problems. Best thing to do is leave it to religious leaders alone rather than try to legislate.”

26. I have had regard to the following report[9] from an evangelical church operating from Vietnam, detailing the success of its evangelical events there:

    Pastor Daniel*, our contact in Vietnam, has shared an update about the evangelistic outreach and other ministries he leads.  He reports that during the past year he has been able to preach and share the Gospel in revivals and meetings in underground churches and house churches.  The government, in an unusual manner, allowed him to speak to a gathering of over 1,500 people in an auditorium at a hotel.  Thank God for 821 people who accepted Jesus as Savior on that night.

    It is thrilling to know so many are accepting Christ in Vietnam.  We are thankful to be able to help support them and pray for our brothers and sisters in Christ.  Your gifts for Vietnam help provide food for orphans, care for lepers, Bibles for Christians, support for Pastors, and evangelistic outreach.  Every size gift can make a huge difference.  One Vietnamese Bible for example costs only $4.00.

    To make a donation to the ministries in To make a donation to the ministries in Vietnam which are making such a big difference please give your gift online here.

    * Names of individuals and ministries in Vietnam are always changed in our online and printed media in order to help protect from ongoing persecution.

    [9] “Evangelism in Vietnam”, Global Outreach Inc., 13 March 2017,

27. I note that whereas the above-cited source has a long-standing policy of protecting the identity of its evangelist, it does report that Vietnamese authorities, apparently local and national, allowed a preaching event in a local hotel in March of this year.

28. I note the following Human Rights Report relating to Vietnam’s respect for religious freedom as surveyed in 2016:

    Freedom of Religion

    The government restricts religious practice through legislation, registration requirements, harassment, and surveillance. Religious groups are required to gain approval from and register with the government, as well as operate under government-controlled management boards.

    While authorities allow many government-affiliated churches and pagodas to hold worship services, they ban religious activities that they arbitrarily deem contrary to the “national interest,” “public order,” or “national great unity.” In 2015, authorities interfered with the religious activities of unrecognized branches of the Cao Dai church, the Hoa Hao Buddhist church, independent Protestant and Catholic house churches in the central highlands and elsewhere, Khmer Krom Buddhist temples, and the Unified Buddhist Church of Vietnam.

    In January 2015, UN Special Rapporteur on Freedom of Religion or Belief Heiner Bielefeldt issued a report identifying “serious problems” in Vietnam’s approach to religion, notably “legal provisions that tend to give broad leeway to regulate, limit, restrict or forbid the exercise of freedom of religion or belief.”

    In April 2015, the Ministry of Interior published the fourth draft of a Law on Belief and Religion, scheduled to be approved by the National Assembly in 2016. Although the draft contains a few marginal improvements on the existing legal framework, it maintains mechanisms allowing authorities to persecute religious groups they dislike and could even give such mechanisms greater legal force.

    Members of ethnic minorities in the Central Highlands continue to be accused of religious “evil ways” and politically “autonomous thoughts” and subjected to intimidation, forced renunciation of faith, arbitrary arrests, and mistreatment in custody.

    In January, April, and July, police prohibited unsanctioned Buddhist Hoa Hao groups from commemorating the anniversaries of the birth and death of Hoa Hao founder Huynh Phu So and of his establishment of the Hoa Hao faith. Participants were intimidated, harassed, and assaulted.

    In January 2015, local authorities prevented members of an independent Mennonite church in Ho Chi Minh City from gathering to pray. Mennonite Pastor Nguyen Hong Quang was repeatedly assaulted during the year. Thugs also attacked other religious figures, including Mennonite pastors Huynh Thuc Khai and Le Quang Du, Hoa Hao Buddhist activist Vo Van Thanh Liem, and Buddhist monk Thich Khong Tanh.

1. Noting that the foregoing is a summary, it nevertheless appears to suggest that mistreatment of Protestant congregations is localised to villages and communities in Vietnam’s Central Highlands.

   Evidence to the Tribunal

2. In submissions to the Tribunal, [Mr A] submitted material from the Catholic church expressing concern in 2015 about the draft reform to Vietnam’s law relating to religion, evidently the law that ultimately came into effect in November 2016; see above. [Mr A] also submitted independent reports about individual Christians who were mistreated by local authorities in evidently individual circumstances, some in remote villages, others, including a Catholic priest, for protesting a notorious toxic waste spill at the Formosa steel plant in Nghe An province. [Mr A] also provided evidence of having moved and donated to [Church 2] in [a particular Australian suburb].

3. [Mr A] brought samples of [Church 2] pamphlets and other literature to the Tribunal hearing, all of which has been sighted and duly considered.

4. At the hearing, [Mr A] told me he was accepted into [a] course in April 2013 but decided to change schools in August 2013. He indicated he did not succeed in changing schools, claiming he received no response to his application to transfer. He said that at the time he still intended to return to Vietnam with skills allowing him to work for a “big company”. He said his student visa was not cancelled until he lodged his protection visa application.

5. [Mr A] said he had already started going to [Church 1] in [2013], a year before he was baptised. He said he did not want to return to Vietnam as he would not be able to engage in all of the practices he has been engaging in here in Australia without being arrested and jailed.

6. Since [Mr A]’s protection visa application relies to a significant extent on conduct he has engaged in since coming to Australia, I am obliged to have regard to s.91R(3) of the Act:

   For the purposes of an application of this Act and the regulations to a particular person:

   (a)          in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)          the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

7. Consideration of this issue involves the weighing of evidence [Mr A] gave at the hearing to the effect that were he to return to Vietnam, the church he would prefer to follow there would be the Catholic Church, which is not Protestant and arguably not  “evangelical” in the modern sense, or at least in the sense described by [Mr A] in much of his evidence. He struck me as being potentially quite arbitrary about which church he might follow in Vietnam, and this caused me to be concerned as to whether his involvement with Christianity in Australia might be entirely for the purpose of strengthening his claim to refugee status. On the other hand, talking about [Church 2], [Mr A] said that as far as he knew there is no specific “sister” church for [Church 2] in Vietnam and indicated that as long as he was able to spread God’s word, God would be happy with whatever church he might serve. In this way, he suggested that denominations are a human construct, not God’s, and the point struck me as one to consider.

8. Somewhat more significantly, I note evidence to the effect that [Mr A]’s affiliation with [Church 1] began before he ran into difficulty changing schools and long before he lodged his protection visa application.

9. On balance, I am prepared to accept that [Mr A]’s engagement with Christianity in Australia is not solely for the purpose of strengthening his protection visa application. I therefore do not disregard it for the purposes of assessing his claims to protection as a refugee under s.36(2)(a). I must thus assess whether or not he faces a real chance of persecution in Vietnam for reasons of his affiliation with Christianity, in particular, evangelical Protestant Christianity and, since he has raised the subject, Catholicism.

10. I put to [Mr A] the many indications in independent reporting to the effect that laws and practice have evolved and that evangelical activities are increasingly tolerated in Vietnam. In reply, he said I was citing and relying on state propaganda. I put to him that I was citing from independent and mostly international church websites discussing conditions affecting their followers in Vietnam. He then said that these churches cannot tell the truth. I put to him again that these sources originate from outside of Vietnam and he said that foreign preachers are only allowed to preach religion and are not allowed to get involved in Vietnam’s domestic politics. I asked [Mr A] why this was relevant, as he appeared only to be claiming fear of persecution should he proselytise in Vietnam, as distinct from claiming that he wished to speak out politically but would be persecuted for doing so. In response, he said there is no freedom even to practice religion in Vietnam. At another stage of the hearing, however, he said that, although not allowed to engage in outreach or public evangelism, he is free in Vietnam to worship and pray in church, church venues, amongst fellow congregants and at home. I put to him that I could find no evidence to suggest he would face a real chance of persecution should he help or participate in leading a person to and through baptism. In reply, he said that baptisms are only allowed to be performed within the precincts of church land. However, he did not suggest how this situation, one that pastors and priests would normally have to accommodate, might lead to his being persecuted in Vietnam. [Mr A] said that the main issue for him was that churches cannot preach or solicit for donations outside of church precincts.

11. I noted at the hearing the independent evidence before me indicating that Vietnamese authorities had a history of conflict with evangelical churches in Montagnard-inhabited Central Highland regions due to their alleged use of churches as dissident and even secessionist political space. I note [Mr A] having submitted articles about mistreatment of local evangelical pastors in those localities, including a report of assault on one individual by a group of others over his having converted to Christianity (Tribunal file at f.79). However, I put specifically to [Mr A] that the Seventh-Day Adventist Church and the New Life Fellowship recently reported very successful public evangelical initiatives in large cities such as Ho Chi Minh City all with permission from city and national authorities. In reply, [Mr A] again said that this information was merely propaganda published by the Vietnamese government. I reiterated that the information came from the churches themselves and he went on to say that there were still a lot of reports of “religious persecution”. He referred generally to an international human rights reporting body having lowered Vietnam’s international score in matters of religious freedom. He may have been referring to Human Rights Watch reporting, including an article that he submitted to the Tribunal (Tribunal file at f.72), but this report is also about repression of Montagnard groups in areas where local authorities “came to permanently associate Christianity with the political dissent of the ethnic minorities”.

12. As noted, when I asked [Mr A] which church he would join if he were to return to Vietnam, he said it would be the Catholic Church. We therefore discussed treatment of Catholics in Vietnam. Recalling some of the reporting he himself had submitted, I put to [Mr A] that the Catholic Church is the largest and oldest Christian church in Vietnam. I put to him that, according to independent evidence, Catholics evidently enjoy freedom to profess, pray and worship as Catholics in Vietnam. In response, he said that Catholic demonstrators who oppose the government in land disputes are “persecuted”. I put to [Mr A] that the phenomenon he was describing was essentially about land, its authorised use and who has the right to develop it, and that the “persecution” he was generally describing was really about specific protests, in Nghe An province, at which there had been some arrests. I put to him that these arrests did not necessarily mean that he would be persecuted for becoming and being a Catholic. I put to him that the Vietnamese authorities would not interfere if he wanted to live as a Protestant Christian or as a Catholic, but might react at least at a local level to his participation in protests relating to land disputes. In reply, he essentially repeated the general position to the effect that Vietnam persecutes Catholics. I put to him that he had not mentioned or demonstrated the slightest interest in taking up any cause relating to the recent and ongoing land disputes in certain particular locations in Vietnam (mainly in Central Vietnam, quite far from where he lives). Given an opportunity to respond, [Mr A] merely referred to an example of disputation over a parcel of land in a parish he appeared to identify as “Thai Ha”. He also referred to what he suggested was the recent arrest and beating of a man called Nguyen Van Dai, whose name appears in an article[10] he submitted after the hearing.

    [10] “Persecuted Rights Advocates in Vietnam Seek Help from World’s Democracies” Morningstar News, 13 June 2016, >

    At the end of the hearing, [Mr A]’s adviser drew my attention to a number of books and pamphlets that [Mr A] had brought along to show me. I duly copied and examined all of the material he submitted.

13. [Mr A] made post-hearing submissions to the Tribunal via email on 23 May, 5 June and 8 June 2017. One of the submissions includes what appears to be a particular report[11] to which [Mr A] referred at the hearing, containing an independent assessment of Vietnam’s approach to religious freedom in comparison with other countries and a report on the treatment of Nguyen Van Dai:

    [11] “Persecuted Rights Advocates in Vietnam Seek Help from World’s Democracies” Morningstar News, 13 June 2016,

    In 2006, the U.S. State Department removed Vietnam from its list of Countries of Particular Concern, citing the release of religious prisoners and the easing of religious restrictions. Two months later, the United States granted Vietnam permanent normal trade status, paving the way for Vietnam to join the World Trade Organization in January 2007.

    As soon as the regime had secured its goals, however, it unleashed a crack-down. Among the first to be arrested was internationally acclaimed human rights lawyer and religious liberty advocate Nguyen Van Dai, a Protestant Christian.

    Arrested on March 6, 2007, and deemed guilty of violating Article 88 of the criminal code – “conducting propaganda against the state” – Nguyen Van Dai spent the next four years in prison in Hanoi (to March 2011) followed by four years house arrest (to March 2015).

    Dai, 47, was subsequently re-arrested on Dec. 16, 2015, as he was preparing to meet with European Union representatives who were in Hanoi for the annual EU-Vietnam human rights dialogue. He is being held incommunicado, charged with violating Article 88, the maximum sentence for which is 20 years.

    Denied access to her husband and fearing abusive treatment and unjust processes, Dai’s wife, Vu Minh Khanh – also a strong Christian and courageous religious liberty advocate – is seeking assistance from the world’s leading democracies.

    On May 10, Khanh presented her testimony to the U.S. House of Representatives’ Committee on Foreign Affairs, Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, chaired by Rep. Chris Smith. She is now in Australia, traveling with Vietnam Voice. …

    Green Light for Repression

    On May 23, while on an official visit to Vietnam, U.S. President Barack Obama lifted the decades-long embargo on selling lethal weapons to Vietnam without requiring any concessions in return.

    This despite the fact that the Vietnam Humans Rights Act of 2015 states, “It is the sense of Congress that: it shall be U.S. policy that further easing of the prohibition on the sale of lethal military equipment to Vietnam shall require Vietnam to take additional and sustained steps to advance human rights protections.”

    Smith called Obama’s move an “epic failure of diplomacy.” Phil Robertson, deputy director at the New York-based Human Rights Watch agreed.

    “In one fell swoop, President Obama has jettisoned what remained of U.S. leverage to improve human rights in Vietnam – and has basically gotten nothing for it,” Robertson said.

    In giving the ruling Communist Party of Vietnam exactly what it wanted without requiring anything in return, Obama has essentially given the party a green light to further escalate repression and persecution.

    Consequently, religious liberty advocates hold grave fears for Dai and Khanh, especially as those fears are personified in the plight of pastor Nguyen Cong Chinh and his wife, Tran Thi Hong.

    Persecution Paradigm

    The Rev. Nguyen Cong Chinh, a 45-year-old Protestant in the Central Highlands province of Gai Lai, has suffered systematic, violent persecution at the hands of Communist Party officials since 2003, when he protested ethnic-religious persecution and appealed for religious liberty.

    Arrested on April 28, 2011, Pastor Chinh was sentenced on July 31, 2012 to 11 years in prison for violating Article 87 of the criminal code, “undermining national unity.” In prison, he has been subjected to lengthy periods of solitary confinement, numerous beatings, deprivations (including being denied the right to pray), and humiliating and traumatizing Cultural-Revolution- style criticism sessions that fuel inmate hostility against him.

    Also targeted for systematic violent persecution is Pastor Chinh’s wife, Tran Thi Hong, for she too is a courageous religious liberty advocate.

    On March 30 March, local regime officials forcefully prevented Hong from attending her scheduled meeting with a U.S. delegation led by David Saperstein, Ambassador-at-Large on International Religious Freedom. The meeting only went ahead after Hong managed to inform Saperstein that she had been ambushed, seized and escorted back home, at which point Saperstein intervened.

    On the morning of April 14, however, officials abducted Hong from her home and took her to the office of the People’s Committee of Hoa Lu Ward, where she was interrogated and beaten by plainclothes agents for three hours, leaving her with injuries to her head, knees, legs, hands, and feet.

    In May, Hong was forcibly dragged to the police station and interrogated on May 11, 12, 13, 27 and 28. On May 13, when her distressed 18-year- old son tried to protect her, he too was assaulted, strangled, bound and detained for the rest of the day.

    Attracting Interest

    The violent persecution of Hong and the re-arrest of Dai and have not gone unnoticed. On April 26, Amnesty International demanded “a prompt, impartial, independent and effective investigation” into “the alleged torture of Mrs. Tran Thi Hong.” …

    On June 2, the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) called on the government of Vietnam to stop the persecution of Hong, “who has been repeatedly arrested and tortured as retaliation for informing the international community of human rights violations against her husband, who is in prison for peaceful religious activities.”…

    On June 7, a joint motion was tabled in the European Parliament requesting a debate on cases of breaches of human rights, democracy and the rule of law in Vietnam: European Parliament resolution on Vietnam (2016/2755(RSP))…

    New Dynamic Creates Opportunity

    China’s territorial expansion in and militarization of the South China Sea has Vietnam looking for friends and allies. This new dynamic gives Western democracies more leverage with Vietnam than they have had in years.

    What post-Christian “progressive” Western elites need to understand is that in Vietnam, the church is integral to civil society and is at the center of virtually all humanitarian, pro-democracy, and human rights work.

    Consequently, a strong defense of religious freedom is a highly strategic means of advancing humanitarian work, human rights advocacy, and capacity building to further democracy and liberty.

14. Again, the persecution described in this article, including the repeated repression of Nguyen Van Dai since 2006 and more recently in 2015, appears to be specific to conditions affecting ethnic minority church communities in the Central Highlands.

    Findings in relation to s.36(2)(a) of the Act

15. I accept that [Mr A] is a genuine baptised Christian. I have not quizzed him about Bible knowledge as it can be dangerous to draw conclusions from such tests. On various occasions throughout his application, [Mr A] has described or at least referred to God’s message, as he interprets it, and demonstrated how he feels he might best bear witness to it: by encouraging others to join him. That said, I find on [Mr A]’s own admission and, in particular, on his oral evidence at the Tribunal hearing that he is still exploring his place in Christian life, is not as wedded to specific manifestations of public evangelism as he claims, is open to a variety of ways of serving his God and remains open to moving from one church to another ([Church 1] to [Church 2] and perhaps even the Catholic church. According to his evidence, he is quite pragmatic about whether to be Protestant or Catholic, and on reflection I give quite some weight to this evident openness and flexibility in assessing whether any adaptation to life as a Christian in Vietnam might amount to persecution in [Mr A]’s own individual case[12].

    [12] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, >

    I find that in the event of returning to Vietnam, [Mr A] will genuinely seek to affiliate himself with a Christian church, and that it will more likely be an evangelical Protestant church, although I do not rule out that he may genuinely be curious about joining the Catholic church. I do not accept his suggestion that there is no church in Vietnam that could be equivalent or similar to the evangelical churches he has joined in Australia.

16. I find that [Mr A] will engage in the evangelical life and activities of that church to the extent that his self-described abilities allow and under the guidance of his pastor or priest, just as he has been doing in Australia.

17. As shown, I put to [Mr A] a number of references to independent evidence regarding relaxation of local and national Vietnamese authorities’ attitudes to evangelical churches, their practices and their foreign affiliations. [Mr A]’s overall response to all of this material was that it was government propaganda masking ongoing harassment of evangelical and other Christians including Catholics. Having reviewed all of the evidence before me, I am satisfied that I can rely on this material being independent, which is to say that I give no weight at all to [Mr A]’s position about such reports being state propaganda. I give some weight in this matter to the independent evidence of an arguably significant relaxation in the Vietnamese government’s response at national and many local levels to the existence and growth of evangelical churches on Vietnam.

18. [Mr A]’s response to this generally comprises reports about ongoing mistreatment of evangelical church communities in the Central Highlands, due to the persistent impact of old conflicts and prejudices in that region, and his references to how some Catholics have been mistreated in the course of engaging in disputes over specific tracts of land in and around Nghe An province in recent years. Weighing all of the evidence together, I give little weight to the country information provided by [Mr A] as evidence that he would face a real chance of persecution in Vietnam in the reasonably foreseeable future: he is not from any of the religious, ethnic and linguistic minority groups of the Central Highlands, he has not expressed any interest in mixing with those communities, he is not a Catholic and he has not displayed any genuine personal or principled interest in becoming involved in church land disputes anywhere or at any time in Vietnam. Recalling that [Mr A] cited a number of instances of individuals having been assaulted and even killed reportedly for reasons of their Christian faith, I give little weight to these instances as they are evidently localised instances, and usually specific to ongoing conflict in specific parts of Vietnam where [Mr A] has never resided and where he shows no interest in residing.

1. Evangelism can take many forms, whether on a more personal level or in more of communal context, and some of the country information cited in this decision shows a variety of ways in which [Mr A] could participate in church outreach on both levels without facing a real chance of persecution, as long as he does not mix religion and politics, which he displays no interest in doing. To be able to engage in a life of evangelism would appear to require [Mr A] to undertake a lot more learning than he claims to have undertaken, and it would also logically require him to become more settled in his mind as to which church he should be attracting others to join, which at present he evidently is not. I am satisfied on the evidence before me that, whether he remains a member of an evangelical Protestant church or becomes a Catholic, [Mr A] does not face a real chance of persecution in Vietnam for identifying, professing, praying or worshipping as a Christian in Vietnam, or for engaging in outreach or evangelist activities  there.

2. I am not satisfied on the evidence before me that [Mr A] would need to alter his behaviour to avoid persecution in Vietnam, let alone in such a way or to such a degree as would infringe upon his freedom of conscience and religion.  

3. Having considered all of the evidence in this matter separately and cumulatively, I am not satisfied that [Mr A] faces a real chance of persecution in Vietnam in the reasonably foreseeable future for reasons of being a Christian, whether Catholic or Protestant, or even evangelical Catholic or Protestant, or for any other Convention-related reason. His claimed fear of Convention-related persecution is not well founded. He is not a refugee.

4. For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

   Findings in relation to s.36(2)(aa) of the Act

5. Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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.

6. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

7. In this case, [Mr A]’s claims to complementary protection are essentially the same claims he has made for protection as a refugee. Given my findings of fact in relation to [Mr A]’s refugee claims, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that [Mr A]’s claims can no more succeed as complementary protection claims than they do as refugee claims.

8. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that [Mr A] will suffer significant harm.

   Other findings

9. There is no suggestion that [Mr A] 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, he does not satisfy the criterion in s.36(2).

   DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

11. 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.

12. 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).

13. 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.

14. 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’).

15. 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.