1507731 (Refugee)

1507731 (Refugee) [2018] AATA 408 (24 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507731
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Amanda Paxton
DATE:24 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 24 January 2018 at 8:03am
CATCHWORDS
Refugee – Protection visa – Vietnam – Criminal charges and imprisonment – Identity issues –- Immigration history – Will not face harm on return to Vietnam
LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 36(3), 65, 91R, 91R(1), 91R(1)(b), 91R(1)(c), 91R(2), 91S, 499
Migration Regulations 1994, Schedule 2, r 1.12
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas [in] June 2013 and the delegate refused to grant the visas [in] May 2015.
For reference in this decision, where relevant, the first named applicant will be known as ‘the applicant’, the second named applicant as ‘the applicant child’. The applicant is in a de facto relationship and her de facto husband will be known as the applicant’s husband.
The applicant appeared before the Tribunal on 16 February 2017 to give evidence and present arguments, on behalf of herself and her child. This hearing was adjourned for reasons of time and was resumed on 21 February 2017.
The applicant’s husband has made a related application which also includes the applicant’s daughter. However, a decision on the review application of the applicant’s daughter is contained in this decision as set out below. The application is the applicant child’s first application of review and is made under the law in place at the time she was included in this, her mother’s, application.
The Tribunal heard evidence and argument from the applicant and her husband both separately and jointly.
The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearings. The applicant provided a copy of the delegate’s decision record to the Tribunal.
RELEVANT LAW
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
Paragraph 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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that DFAT released a Country Information Report on Vietnam on 31 August 2015.[1] This DFAT Report has been updated, the most recent being published on 21 June 2017.[2] In line with its obligations under Direction No. 56, the Tribunal has had regard to the most recent report and carefully considered the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially from the report of August 2015 and does not raise any new issues for this assessment.
[1] DFAT, Country Information Report, Vietnam, 31 August 2015.
[2] DFAT, Country Report Vietnam, 21 June 2017.
Member of the same family unit
Paragraphs 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Subsection 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Subsection 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant made the following claims in her written statement dated [in] February 2017 and provided to the Tribunal at the hearing on 16 February 2017:
a.    I acknowledge from the outset that I have provided the Department with a different account relating to my protection claims previously. I only attended a small amount of school and speak very limited English. I received some limited support with my protection visa application from [agency]. My husband and I have been extremely unhappy and overwhelmed throughout this whole process. It has been a nightmare. While not trying to excuse my behaviour, I do not think I ever understood the ramifications of our actions.
For a long time now, my husband and I have tried very hard to make amends for what we did.
Background
b.    I was born in the Nghe An province of Vietnam on [date]. My family moved to [Country 1] when I was [age] and I was raised by [a relative] in Vietnam. I do not know much about my parents. She did not have her own family and sold [goods] outside of her house. We did not have money to send me to high school.
I am in a long-term relationship with [my husband]. We met each other in or around 2008. At the start of 2009, I moved to [my husband]’s parents' house in Vietnam. I was only [age] at the time.
[My husband] travelled to Australia [in] June 2009. Not long after this, I found out that I was pregnant with our first daughter, [Child 1].
My family were living in [Country 1] at the time and on finding out that I was pregnant, my mother returned to Vietnam to try and pressure me to have an abortion. I was afraid of her and I worried she would do something to hurt me or the baby. She objected to my pregnancy because she opposed our relationship. This was a very stressful and horrible time for [my husband] and I, but we were both certain that we wanted to have our baby. My parents separated us by taking me away to a place my husband could not find me. This lasted two or three months. I had to stay in a room. Nobody knew where I was. They forced me to see a doctor but I refused to have an abortion. I was completely terrified. This was traumatic for me.
[Child 1] was born on [date] and currently lives in Vietnam with [my husband]’s parents. My parents-in-law are struggling financially and it is very difficult for them to care for her.
I arrived in Australia [in] July 2010 on a Vietnamese passport in the name of [name]. The passport contained a valid [temporary visa]. I wanted to bring my daughter with me but there was no space for dependents to travel on the [temporary visa] that had been granted to [name]. I miss my daughter every day. I decided to follow my husband because I missed him very much. I was very young at the time. My husband also wanted me to come, because he considered that we needed to be together as a family. He wanted to build a family life for us. While in Australia, I fell pregnant again.
[In] June 2012, my partner was arrested on charges relating to the possession, cultivation and trafficking of drugs. I understand that [in] July 2012 he was convicted of these offences and was released because he had already served the sentence.
[In] July 2012, [my husband] was deported to Vietnam. He did not tell the Department officers that I was pregnant at the time because he wanted to protect me. I was too afraid to return to Vietnam with [my husband] because of the way my family treats me which I have discussed below, and because of my pregnancy. I didn't dare return because I was worried they would do the same thing as they did during my first pregnancy, [my husband]’s removal was crushing for both of us.
I gave birth to our second daughter, [Child 2] in Australia at [a] Hospital in [a suburb]. She was born on [date]. This was a very stressful time for me as my husband had been deported and I had to manage everything by myself, I felt lonely, exhausted and scared.
It was during this time that I applied for a Protection visa, which I will talk about below.
I was desperately unhappy at this time without my husband, caring for our baby alone. Our baby was unwell and we lived in very bad conditions. I could not drive or speak English and I had no support. My husband was extremely unhappy also because of this. I begged him to come back.
My husband returned to Australia [in] January 2014 on a passport under the name of [name]. From this time, we lived as a family. We were very unhappy about what he had had to do to return, but he felt he had no choice. This is not how we wanted to live.
[In] January 2015, after trying to get a learner's permit at [agency], my husband was interviewed by departmental officers and taken into immigration detention. This was the start of a very bad time for us.
[In] January 2015, I was arrested on drug charges and detained at [a named] Centre. The time I was detained was extremely damaging. It is very hard for me to talk about this.
Protection visa application
c.    [In] June 2013, I lodged an application for protection with my [Child 2] as a secondary applicant, I stated that I feared returning to Vietnam because I could not look after [Child 2] there. I explained that [Child 2] had never even been to Vietnam.
I also said a number of wrong things in my original protection visa application. I said that I met [my husband] in 2009 and that we moved in together in 2010, that I accidentally got pregnant in 2012, and that [my husband] was violent towards me. I have since corrected all of this information and am extremely sorry that I provided this information to the Department. I can only explain it as panic and a lack of understanding. At the time, I was utterly confused. People in the community, including my friends and relatives, were telling me lots of different things. I felt very vulnerable.
I do not recall ever saying that [my husband] had a wife and child in Vietnam. This is not right. I have never believed [my husband] had another wife and child.
I was invited to attend a telephone interview [in] February 2015, however, because I was detained, we asked the Department to postpone my interview. My agent agreed to respond to an invitation to comment instead of having an interview.
My agent at the time ceased to act for me [in] March 2015 and advised that I had been provided with a copy of the invitation to comment. [In] March 2015, the Department officer wrote to me and advised that I was given an extension until [date] March 2015 in order to provide further information.
[In] May 2015, my application for a protection visa was refused.
[In] October 2016, I was given a Notice of Intention to Consider Cancellation of my bridging 'C' visa as a result of my conviction. My bridging 'C' visa was cancelled [in] December 2016.
Recently, I was granted a bridging 'E' visa after a very horrible experience at the Department that went for many hours.
Criminal charges
d.    [In] January 2015 I was arrested and charged with a criminal offence. I do not think I had a bail hearing. I was pregnant when I was taken into custody and suffered a miscarriage not long after. I cannot talk about this experience because it is too heartbreaking.
Custody was an extremely difficult time for me. I was separated from my [Child 2]. I was so worried for her, it was unbearable. I couldn't eat, I couldn't sleep and I was always worried and feeling sick. My being detained also had a huge impact on my daughter and really affected the bond between us. As my husband was detained in immigration detention for some of this time, our daughter had to be cared for by friends. It was devastating and she became very sick.
I was convicted [in] April 2016 of ‘[a drug related offence]' and sentenced to nine months' imprisonment.
I am afraid that, if I returned to Vietnam, I or my husband would be forced to attend a drug rehabilitation camp. I am worried that my family or the authorities could force me to attend because of my history. This makes me very afraid because I would be separated from my daughter and husband.
At the moment, no one knows about our convictions in Vietnam, but I am very worried that it would be discovered, either by the authorities or by other people who might use it against us.
Previously, my husband and I have used drugs. We were very young and knew the wrong people, and sometimes felt depressed. Now we have young children and life is more difficult. We do not use drugs anymore, but I feel worried about life in Vietnam and the pressure on us.
My relationship with my family and the kidnapping of my daughter
e.    When I was young, I did not have a strong relationship with my parents because I was raised by my [relative] after my parents left me. We would talk ever the phone sometimes, and the conversation was always about school.
However, my parents do not approve of my relationship with [my husband]. They strongly disapprove. They do not want him involved in their grandchildren's lives or in my life. I do not really know why this is: in the beginning, when they knew I was seeing him, they did not agree.
When we planned to marry, my mother returned from [Country 1] to try to prevent our marriage and to take me away from Vietnam. When I was pregnant, my mother tried to force me to have an abortion, as I have described above.
When [my husband] was in Vietnam, my parents kidnapped our daughter. They went to [Child 1]’s school and told them they were her grandparents, and it was their right to take her. She was gone for two days. [My husband] and his family went to their home with the police in order to bring my daughter home.
My parents have moved back to Vietnam from [Country 1]. We don't know why they have returned. We know that they went back to Vietnam and met with [my husband]’s family. They caused some trouble to his family and wanted to take our daughter into their custody. They went to our child's school and wanted to pick her up from school, but on this occasion the school did not let them, and they informed [my husband]’s family. I know [my husband]’s parents feel afraid that she will be taken from them.
I am terrified that if we return, my family will kidnap my daughter and never let us see her again. I also feel afraid that they may do something to hurt me or [my husband], or separate us and our children. They will not allow us to have a peaceful family.
I do not know what my family is capable of and am concerned that they might report myself or my husband to the authorities because of our criminal convictions, if they found out.
In Vietnam, there is a lack of freedom. My husband is particularly worried about this. He reads the internet and the news about the restrictions on citizens, repression, and corruption. We are from Central Vietnam, where the sea has been polluted by chemicals. He fears we will be returning to a place where we cannot live freely, and where our daughter cannot live freely.
[My husband]’s family are struggling financially because their livelihood has been [goods] sales, but [details deleted]. The business has gone into insolvency and his parents have had to sell land and assets. They are living on savings.
We do not know how we could make a living in Vietnam. We feel extremely worried that we would not be able to survive.
I do not want to keep these bad things in my mind. It is hard for [my husband] and I to live like this.
I am also worried that the authorities will harm me because I left Vietnam unlawfully and sought asylum in another country.
There is no safety for me and my family anywhere in Vietnam. I only have six years of schooling and could not find work in Vietnam.
I don't think the authorities in Vietnam will protect me. I think they will harm me. If they find out about my offence or drug use, the government will harm me.
It is important for me to stay in Australia because of the pressure that my family will put on me if we are forced to go back to Australia, Secondly, I do not think we could survive in Vietnam financially. My daughter has known nothing but Australia, and I do not want her to her harmed. If something were to happen to me or [my husband], it would devastate our family and be too much for our daughter.[3]
[3] AAT, 1507731, ff. 137 - 139

The applicant made the following claims at the Tribunal hearing on 16 February 2017, adjourned and resumed on 21 February 2017:
a.    The applicant was born in [year] in Vinh City, Nghe An province. She believes that her parents and her [sibling] are all now in Vietnam. She does not recall when she was last in touch with her parents. She believes they are in Vietnam because her husband has told her of contact with them when he was last in Vietnam between 2012 and 2014.
b.    The applicant met her husband in late 2008. She had finished Year [number]. She did not finish school because her parents wanted her to go to [Country 1] but she wanted to remain with her partner so she stayed home. Her husband’s parents agreed that she could remain with them.
c.    The applicant’s husband came to Australia [in] 2009. Their first daughter was born after he had departed. She remained with her parents-in-law, who were in a stable financial position and supported her, and she helped them in their business.
d.    In 2009 the applicant’s mother returned to Vietnam from [Country 1] having heard of the applicant’s pregnancy. When her mother first came back, the applicant went to her [relative]’s house to be with her mother but her mother did not approve of her relationship and took her to another place in a different area, where she could not contact her husband. Her mother locked her in a room and took her to a clinic to terminate the pregnancy, but the applicant did not to agree this. She ran away from the clinic and after calling her mother on a number of occasions she persuaded her mother to take her back home.
e.    The applicant came to Australia in 2010, using the passport of a friend of her husband.
f.   The applicant’s parents-in-law agreed to look after their daughter. She wanted to bring her with her but she knew she could not do that. She knew it was wrong to use someone else’s passport but she wanted to join her husband.
g.    The applicant and her husband speak very often with their daughter, every two or three days and they miss her a lot. The applicant’s daughter is doing OK and is looked after pretty well by her grandparents.
h.    There was a period of time when, according to her husband, the applicant’s parents had caused trouble but there are no problems from her parents at the moment.
i.   The applicant was arrested [in] January 2015 and [in] April 2016 she was convicted of ‘[a drug related offence]’ and sentenced to nine months in prison. She was detained for fifteen months on remand. The applicant’s friends helped look after the applicant child for a period of about three months after her arrest until her husband was released from immigration detention on a Bridging visa E.
j.   The applicant’s health is currently alright but she sometimes gets headaches and her sight is not good. When the applicant first came to Australia she hung out with friends who were not very good and tried ‘ice’ a few times. She stopped using drugs a long time ago, before her husband was deported from Australia in July 2012.
k.     When in prison, the applicant completed a course about gambling because controlling herself when gambling was a problem for her. The course was effective.
At the hearing, the applicant put forward the following reasons why she seeks protection in Australia and is unwilling to return to Vietnam.
a.    The applicant stated that her main concern about returning to Vietnam is that her parents will separate her and her husband and family.
b.    She fears that because she has committed crimes in Australia and has used drugs in Australia, she will be taken to a detoxification centre.
c.    She will be given a hard time because she departed Vietnam and applied for refugee status in Australia.
In her submission dated 14 February 2017, the applicant’s representative submitted that the decision of the delegate was based on claims the applicant no longer wishes to press.[4] It is submitted that the applicant’s conviction for criminal offences have created sur place refugee claims.
[4] AAT, 1507731, ff. 124 - 131
It is submitted that the applicant is unwilling to return to Vietnam because of a well-founded fear of persecution resulting from her imputed political opinion. Further, it is submitted that the applicant is unwilling to return to Vietnam because of a well-founded fear of persecution resulting from her membership of a particular social group, “a person perceived by authorities to be associated with the drug trade or drug use”; “a person who departed from Vietnam unlawfully”; and “a person who sought asylum in another country”.
It is submitted the applicant child has a well-founded fear of persecution resulting from her membership of a particular social group, as “a child of a person perceived by authorities to be associated with the drug trade or drug use”; “a child of a person who departed from Vietnam unlawfully; and “a person who sought asylum in another country.”
It is further submitted that both the applicant and her husband have been convicted of criminal offences relating to drug cultivation and possession while in Australia and that it is likely the applicant’s convictions will be known to the Vietnamese authorities. On this basis, it is claimed the applicant is at serious risk of harm on return to Vietnam on the basis of her association with drug use and the drug trade in the past, which places her at heightened vulnerability.
It is further submitted that the pressure of being forced to return to Vietnam may be such that it would cause the couple to return to substance abuse.
In the submission dated [in] February 2017, the applicant’s representative provided information from a range of sources including the United States Department of State, 2015 Country Reports on Human Rights Practices – Vietnam, 13 April 2016, Human Rights Watch, Vietnam: New Wave of Arrests of Critics, 27 January 2017, Amnesty International, Radio Free Asia, concerning treatment of suspects, the right to a fair trial, suppression of dissent and activists, and political prisoners, and the impact of the toxic chemical spill from the Vietnam unit of Taiwanese conglomerate Formosa Plastics Group in 2015.[5]
[5] AAT, 1507731, ff. 124 - 131
In her submission of 14 February 2017, the applicant’s representative submitted DFAT country information, concerning harsh treatment of drug users in Vietnam and detention in administrative centres without charge. USDOS information is also provided which indicates that the Vietnamese government confines drug users in “compulsory detoxification establishments” where mistreatment occurred. It is submitted that if the applicant and her husband were interned for their criminal history or drug use, they would be separated from their children.[6]
[6] AAT 1507731, ff.126 - 128.
At hearing, the Tribunal permitted the applicants additional time to provide further submissions. On 14 March 2017, the applicant’s representative submitted documentation setting out the applicant’s husband’s offending for which he was convicted [in] July 2012.[7] Also submitted was country information including material concerning treatment of Vietnamese asylum seekers and boat venture organisers, conditions in detention and treatment of people in drug rehabilitation centres.
[7] AAT 1507731, ff.157 - 160.
On 11 September 2017, the applicant’s representative wrote to the Tribunal submitting that given the passage of time since the hearing, if the Tribunal proposes to make a negative decision in this case, particularly if credibility is an issue, a further hearing will be necessary. In considering this submission, the Tribunal takes into account that the applicant is represented and considers that had the applicants’ circumstances in respect to their claims for protection changed, the applicant’s representative would inform the Tribunal. As discussed above the Tribunal notes that DFAT Country Information Report, Vietnam of August 2015 put to the applicant was updated in June 2017. As above, the Tribunal has had regard to the most recent report and carefully reviewed the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially from the report of August 2015 and does not raise any new issues for this assessment. As discussed in the assessment below, concerns about the credibility of certain specific claims were addressed and clarified at the hearings. The Tribunal has considered this submission and has decided not to conduct a further hearing.
Country of nationality
The applicant claims to be a citizen of Vietnam. The applicant told the Department that she entered Australia under another identity (using the passport of a friend of her husband), and as discussed below the Tribunal accepts that she did. However, as discussed in the delegate’s decision provided to the Tribunal by the applicant, the applicant presented a Vietnamese passport valid until [month] 2018 to the police during a warrant search in November 2010 she claimed was issued in her name, and following investigation the Department was satisfied that this passport had been issued in the applicant’s true identity. [8] While the applicant told the Department she had lost this passport, on the basis of it, the Department’s NIVA officer, was reasonably satisfied that this passport was issued in the applicant’s true identity. On the evidence before it, the Tribunal is satisfied that the applicant is a citizen of Vietnam, that Vietnam is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Vietnam is her receiving country for the purposes of complementary protection.
[8] AAT 1507731, f. 23.
On the basis of the evidence of the Birth Certificate of the applicant child, the Tribunal is satisfied the applicant child was born in Australia on [date].[9] The applicant child’s birth certificate does not show a father but it is claimed he is a Vietnamese citizen. The Vietnamese law on Nationality includes the following provisions for children born overseas to be Vietnamese citizens at the time of their birth.
·     Both parents are Vietnamese citizens;
·     Their mother is a Vietnamese citizen and their father is unknown; or
·     If one parent is a Vietnamese citizen and both parents agree the child is to be a Vietnamese citizen.[10]
[9] [File number deleted], f. 48.
[10] “Law on nationality”, The Socialist Republic of Vietnam, 1 January 2008, CIS24205
There is no information before the Tribunal to indicate that either of the applicant child’s parents were an Australian citizen or permanent resident at the time of her birth. On the evidence before it, the Tribunal is satisfied that Vietnam is the applicant child’s country of nationality for the purposes of the Refugees Convention, and that Vietnam is her receiving country for the purposes of complementary protection.
Third country protection
There is no evidence before the Tribunal to suggest that either of the claimants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[11] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[11] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[12]
[12] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The Tribunal notes as documented in the delegate’s decision record provided to the Tribunal by the applicant, and as indicated in the applicant’s written statement and oral evidence to the Tribunal, that the applicant has a long and complex history of providing false, inconsistent and contradictory information concerning her identity, her travel to Australia, her immigration history, and her marital status.[13] The applicant indicated she no longer wishes to press the claims on which the delegate’s decision was made and presented different claims to the Tribunal. In her written statement to the Tribunal the applicant accepts responsibility for incorrect statements made to the Department as part of her primary application and her history of using false identifiers, stating that she and her husband did not understand the ramifications of her actions due to her youth, fear and lack of understanding.
[13] AAT, 1507731, ff. 1 – 24.
It is submitted that the applicant’s credibility should not be undermined by her previous incorrect statements to the Department because she is very young, has an extremely vulnerable background and has suffered significant trauma in her life, both in Vietnam and since arriving in Australia. The Tribunal acknowledges that the applicant has suffered some emotional hardship as her family have been absent for much of her life. The Tribunal accepts that in Australia the applicant may have experienced hardship in prison, including a miscarriage, and that separation from both her children, and from her husband (at times voluntarily and other times involuntarily) renders her vulnerable. However, the Tribunal also notes she has been in a stable relationship with her husband since 2008 and has had the support of his family. Whether or not these factors explain the applicant’s past conduct, the Tribunal accepts the applicant, now [age], is remorseful.
Noting that the applicant has presented new claims to the Tribunal, the Tribunal has assessed the applicant’s credibility on the basis of her written statement to the Tribunal, her oral evidence to the Tribunal, in conjunction with the evidence of her husband provided to the Tribunal at a joint hearing. On this basis, as set out below, the Tribunal found that a number of significant claims in respect of her family’s behaviour made in the applicants’ written statement did not occur as claimed, and the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.
On the evidence before it, the Tribunal accepts the following:
a.    The applicant was born in Nghe An Province, Vietnam, in [year].
b.    The applicant’s parents and her [sibling] moved to [Country 1] when the applicant was [age]. She was raised by her [relative] and did not have a strong relationship with her parents.
c.    The applicant received limited education.
d.    The applicant and her husband commenced a relationship in 2008 and the applicant commenced living with her husband’s family in 2009 when she was [age].
e.    The applicant’s husband travelled to Australia on a [temporary visa] in 2009.
f.   Not long after her husband’s departure, the applicant found out she was pregnant and their first daughter was born in Vietnam in [year].
g.    The applicant’s husband’s family’s financial situation was quite stable and while his parents want her husband to [come to] Australia, they wanted her to stay in Vietnam to help them. The applicant was supported by her husband’s family and worked in their family [business].
h.    The applicant departed Vietnam using the passport of a friend of her husband containing a [temporary] visa [in] July 2010, leaving her daughter in the care of her husband’s parents who agreed to look after her.
i.   The applicant’s husband’s [temporary] visa was cancelled in May 2011.
j.   The applicant’s husband was arrested in June 2012 on drug related charges and on July 2012 he was convicted and sentenced to 30 days imprisonment as part of an aggregate sentence to be served concurrently.[14]
k.     [In] July 2012, the applicant’s husband was taken into immigration detention and [in] July 2012 he was removed from Australia and returned to live with his family. In this period he stayed home looking after their oldest daughter.
l.   The applicant gave birth in Australia on [date] to a second child.
m.   The applicant’s husband returned to Australia using a false identity to obtain a passport and [temporary] visa in January 2014. He was placed into immigration detention in January 2015.
n.    The applicant was arrested and charged [in] January 2015 and remanded at [a] Centre.
o.    The applicant’s husband was released from detention on a Bridging visa E enabling him to look after their child in April 2015.
p.    [In] April 2016, the applicant was convicted of drug offences and sentenced to nine month’s imprisonment. She was released at that time on the basis of time served.
q.    The applicant’s BVC was cancelled under s. 116(g) [in] December 2016 on the ground found within r. 2.43 and specifically r. 2.43(1)(oa), convictions for temporary visa holders.
[14] AAT, 1507731, ff. 158 – 160.
Harm from the applicant’s family
The Tribunal has considered whether the applicant faces a real chance of serious harm now or in the foreseeable future or a real risk of significant harm on return to Vietnam from her parents and family. At hearing, the applicant claimed her main fear about return to Vietnam is that her parents will find a way to separate her from her husband and children because they do not approve of her husband. The applicant suggested that her parents may be able to achieve this by “dobbing in” the applicant or her husband or both to the authorities, telling them about her drug taking, convictions and immigration history so that she is detained in a drug rehabilitation centre or in criminal detention on fabricated charges or as a consequence of her illegal departure from Vietnam.
The applicant has provided accounts of two incidents as the basis for her claim to fear harm from her family. The first incident concerns the applicant’s mother’s treatment of her when her mother found out the applicant was pregnant. As set out above, in her written statement the applicant claims that when her mother found out she was pregnant in 2009, she returned to Vietnam from [Country 1] to try to “pressure” her to have an abortion. In this statement she says that she was afraid of her mother and was worried her mother would do something to hurt her or the baby because she opposed her relationship with her husband. She stated that her “parents separated us [the applicant and her husband] by taking me away to a place my husband could not find me. This lasted two or three months. I had to stay in a room. Nobody knew where I was. They forced me to see a doctor but I refused to have an abortion.”
At hearing, the applicant gave oral evidence that in 2009, when the applicant was [age], the applicant’s mother returned to Vietnam from [Country 1] having heard of the applicant’s relationship with her husband. At that time the applicant’s husband was in Australia. She stated that when her mother first returned, the applicant went to her [relative]’s house to be with her mother. She stated that her mother, disapproving of the applicant’s relationship with her husband, took her to another place in a different area where she could not contact her husband. When asked to be more specific, the applicant stated that they went by car to Hanoi. She could not recall how long they were there. She stated her mother kept her in a room and took her to a clinic to terminate the pregnancy, but she didn’t agree. She claimed she ran away from the centre and contacted her husband using a phone she had taken with her without her mother’s knowledge. She stated that her husband told her to go to a coach station but her mother found her and locked her up in the room; but when her mother went out she ran away again. She stated that in phone calls to her mother she finally persuaded her mother to agree to take her back home and they returned to Nghe An.

The Tribunal has considered the applicant’s evidence and accepts the applicant’s consistent evidence that her mother did not approve of her relationship with her husband, did not want them to marry and did not approve of the pregnancy. On the applicant’s oral evidence, consistent with her written statement, the Tribunal accepts the applicant’s mother took her to Hanoi to seek termination of the applicant’s pregnancy and that this was against the will of the applicant. However, the applicant’s evidence about this period is inconsistent. For instance the applicant has stated in her Statutory Declaration and initially at hearing that she was not able to communicate with her husband but she later told the Tribunal that she communicated by phone with her husband using a phone her mother did not know about. On this basis, while the Tribunal accepts her mother may not have known the applicant had a phone, the Tribunal does not accept the applicant’s claims her husband did not know where she was, or that her mother separated them, given he was in Australia at the time. The Tribunal considers the applicant’s written account of this period has been embellished.
In the applicant’s written statement, she said she “had to stay in a room”, and at hearing that she was “locked” in the room. The applicant’s oral evidence about this event was vague. For example, she told the Tribunal she could not remember how long she stayed in Hanoi. While the Tribunal acknowledges that these events occurred a number of years ago and that the applicant’s memory of the event may have faded, the Tribunal finds it hard to believe that the applicant could not recall in general terms how long she was in Hanoi, especially if it was for a period as long as a few months as indicated in her written statement. The Tribunal found the applicant’s evidence that she was locked in a room unconvincing for this reason.
The applicant told the Tribunal she “ran away” twice, and that on the second occasion after a number of calls to her mother, her mother was persuaded to take her home. On the consistent evidence of the applicant, the Tribunal accepts the applicant stayed in a room with her mother in Hanoi, but given that on her evidence, she was able to leave the room, the Tribunal is not satisfied the applicant was forcibly held or locked in a room. On the consistent evidence of the applicant, the Tribunal accepts the applicant’s claim that her mother tried to convince her to have a termination and that she saw a doctor against her will. The Tribunal accepts this would have been a stressful time for the applicant. However, the Tribunal notes that the applicant’s wish to have the baby was ultimately respected, she was not forced to have an abortion and finally her mother agreed to take her home. Taking all the evidence into account, and having regard to the non-exhaustive examples of serious harm in s.91R(2) of the Act, and the definition of significant harm in s.36(2A) of the Act, the Tribunal finds that the applicant’s mother’s conduct toward the applicant did not constitute either serious harm or significant harm to the applicant.
Looking to the future, the Tribunal does not consider the applicant’s mother’s conduct in 2009 is indicative that she will seek to separate the applicant from her husband and children on her return to Vietnam.
The applicant has indicated that she fears harm from her parents because of their claimed conduct in respect of her oldest daughter. As above, in her written statement, the applicant gave evidence that her parents kidnapped her daughter. The applicant wrote that her parents kidnapped her daughter by going to the school and telling the school they had a right to take the child because they were her grandparents, and that they took her for two days returning her when the applicant’s husband and family accompanied by police brought her home. She wrote that on another occasion her parents, who wanted to take their grand-daughter into their custody, went again to the school but the school did not agree to release their daughter and contacted the applicant’s husband’s family.
At the joint hearing, the applicant’s husband supported the applicant’s claim that her parents do not approve of their relationship. He said “I don’t want to think about those things and I don’t understand what sort of people they are. They have disapproved of our relationship since we first met and when [his wife] was pregnant with their first child, his wife’s parents prohibited her from having a relationship with him and tried to persuade her to have the pregnancy terminated.” As above, the Tribunal accepts that the applicant’s parents did not approve of the relationship or the pregnancy but that ultimately they permitted both to go ahead.
At the joint hearing, the applicant’s husband told the Tribunal that when he returned to Vietnam, the applicant’s parents knew he was there and came to the house and caused trouble. According to the applicant’s husband, the applicant’s parents said that his child is their grand-daughter and they wanted to have custody of her. When asked to expand, the applicant’s husband said the applicant’s parents “sent people (their family members) to come and verbally abuse them and one of them hit my mother.” He stated that on another occasion when his daughter was at school they went to the school and wanted to pick up his daughter but the school did not agree and called his parents. He and his parents went to the school and the local police were called to help. The police intervened and said the applicant’s parents did not have the right to get custody.
In clarification to the Tribunal, the applicant’s husband stated that the first occasion where the applicant’s parents sought contact with the child while he was in Vietnam was when they went to the school and the school did not permit them to take the child. He stated that there was only one occasion where the applicant’s parents went to the school. He stated that the applicant’s parents did not kidnap the child on any occasion and the child was not taken from the school for two days as claimed by the applicant. In response to the Tribunal’s enquiry about the inconsistency in the applicant and her husband’s claim, the applicant stated her parents planned to take her daughter away when the applicant’s husband was in Vietnam, but she noted that she was not there and did not witness this. The applicant’s husband elaborated saying that from the outside it looked like his in-laws wanted to bring their daughter home for a visit with them, but from his point of view they wanted to take her permanently. But it is hard for him to say or what they were thinking. He does not know what they think. On the evidence before it, the Tribunal concluded that the applicant’s daughter was not kidnapped by her parents as claimed.
At hearing, the Tribunal noted the claim that the applicant’s family members went to her husband’s home and someone hit his mother because her parents wanted custody of the child, had not previously been made. The applicant’s husband stated that he did not mention this incident to his wife because “that is not a good thing to say and that is why I did not mention that.” With prompting, the applicant’s husband stated that shortly after the incident at the school, the in-laws came to his parents’ home and were invited into the house but after some time an argument started because his in-laws said that the child is his wife’s daughter and they had the right to bring her home. When they tried to insist that their daughter go back to their family, there was a verbal argument between the families and some physical fight, “but not that big.” According to the applicant’s husband at hearing, at that time he did not know but there were some people waiting outside the house who tried to come in and take the daughter away but his mother tried to keep her. The local police came and the people had to leave. The daughter remained with his parents and was not kidnapped.
At hearing, the Tribunal sought explanation for the discrepancies in evidence concerning the claimed kidnap of the child for two days by the applicant’s parents and why the claimed dispute with the applicant’s parents at the applicant’s husband’s house had not been made at an earlier time and was unknown to the applicant. The applicant’s husband stated that the evidence of his wife is not precise because he did not tell his wife everything because he did not want to worry or disappoint her so she did not know about that.
The Tribunal considers these discrepancies in the evidence put before it by the applicant and her husband are significant. The Tribunal acknowledges that the applicant was not in Vietnam and did not witness the events claimed in her statement. The Tribunal also takes into account the applicant’s husband’s explanation that the matter of police coming to his family home to intervene had not previously been raised, i.e. that he did not want to worry her because she was on her own in Australia and pregnant. However, the Tribunal considers it difficult to believe that given the significance of these events to the applicant’s claims, the applicant and her husband would not ensure over the three years since he returned to Australia that she had a full understanding of past events she was relying on as the basis of her Protection visa claims. The Tribunal also notes the applicant and her husband have lodged a joint submission for their Protection visa applications and in these circumstances, the Tribunal does not accept that the applicant’s husband’s desire not to worry the applicant explains these discrepancies in evidence.
At the applicant’s representative’s suggestion, the Tribunal enquired whether the applicant’s daughter had been in the applicant’s parent’s custody previously. The applicant and her husband explained that at the time the applicant’s husband was in Vietnam, the daughter was not in her parent’s custody but she had been in the past. The applicant’s husband stated that normally the daughter would just visit her parents to stay in touch with them. The Tribunal considered this evidence was spontaneously and directly given, and on this basis, the Tribunal accepts that the applicant’s family had some form of custody of the child prior to the time her husband returned and that they had been permitted contact with her.
On the evidence before it provided by the applicant’s husband in his direct account, the Tribunal accepts that the applicant’s parents may have disagreed that her husband’s parents had custody of the child and about contact arrangements. The Tribunal accepts there were incidents where the applicant’s parents sought to have contact with her and perhaps to obtain custody and this led to some level of dispute. However, taking all these factors into account, the Tribunal has formed the view that the applicant’s evidence in respect of her parents’ conduct in respect of her daughter is unreliable and embellished. The Tribunal does not accept the applicant’s parents kidnapped her daughter from the school or that they went a second time to the school and the school called the police. The Tribunal does not accept that people went to the applicant’s husband’s house to get custody of the child and that someone hit his mother or that the police were called.
The Tribunal notes the applicant and her husband indicated at hearing that the applicant’s husband’s family had moved about a year ago with their daughter and his wife’s family had not been in contact with them since that time and that “everything is settled.” The applicant further stated that her oldest daughter is now at school, is doing well and is in good health. The Tribunal concluded that the applicant child is not at risk of harm from anyone.
The Tribunal acknowledges that disagreement about contact arrangements for their daughter involving the applicant’s parents must have been distressing and worrying for the applicant. However, on the evidence before it, the Tribunal does not accept the applicant’s parents’ past conduct is indicative that they want sole responsibility of their grandchildren or will act to prevent the applicant’s husband from having anything to do with the children. The applicant has written that she is terrified that if they return, her family will kidnap her daughter and never let them see her again. Looking forward, on the evidence before it the Tribunal considers the chance the applicant’s parents will separate the applicant from the applicant child or in any way harm the applicant or the applicant child is remote. The Tribunal does not accept there is a real chance either of the applicants face serious harm or a real risk either of the applicants face significant harm from the applicant’s parents or anyone else for this reason.
The applicant is now [age] and her husband is now [age], and according to the applicant and discussed further below, she is drug free. Their oldest child has been living with the applicant’s husband’s family since the applicant’s husband was home in 2012, and there have been no further incidents where the applicant’s family have demonstrated interest in custody of the child. The applicant and her husband will be returning as a mature couple, who are demonstratively in a long term stable relationship, and who have been legally responsible parents for their youngest daughter who is now almost [age]. In these circumstances, whatever views the applicant’s parents may have about the applicant’s husband, the Tribunal considers the chance her parents will seriously harm the applicant or the applicant child by separating the family in any way, is remote. The Tribunal considers the representative’s submission that the applicant’s parents have any interest in a role in the responsibility of the grandchildren, or that they will seek an on-going role in the lives of the children by kidnap or the use of force is remote. The Tribunal finds that the applicant and the applicant child do not have a real chance of serious harm or a real risk of significant harm from her parents.
The applicant claims her parents will report her past drug use and convictions if they found out about them to the authorities who may take action against her such as administrative detention. This claim is further discussed below. However, the Tribunal has considered whether there is a real chance or a real risk the applicant’s parents will do this on her return to Vietnam. The Tribunal takes into account the applicant’s evidence that no one knows about her conviction in Vietnam and considering that the applicant was convicted and released from prison in April 2016, a significant time ago, and considering the geographical and social distance between the applicant’s circumstances in Australia and her family in Vietnam, the Tribunal considers this claim to be purely speculative. The Tribunal does not accept there is a real chance or real risk the applicant or the applicant child will be harmed by the applicant’s parents reporting the applicant or her husband to the authorities on this basis.
In addition, as set out above, the Tribunal is satisfied there is less than a remote chance that the applicant’s parents will seek to separate the applicant from her husband and children or to harm either of the applicants in any way. It follows that there is therefore not a real chance or a real risk the applicant’s family would report to the authorities her past convictions for any reason, should they become aware of them. The Tribunal does not accept there is a real chance or real risk the applicant or the applicant child will be harmed by the applicant’s parents reporting the applicant or her husband to the authorities or in any other way.
Harm from the authorities due to association with drugs
The Tribunal has considered whether the applicant has a real chance of serious harm or a real risk of significant harm on the basis of her drug use and association with the drug trade. It is submitted that these aspects of the applicant’s circumstances, separately or in conjunction with a heightened adverse profile arising from the applicant’s unlawful departure from Vietnam, her association with her husband who has also had a drug conviction, and psychological vulnerability. The applicant claims to fear that she and her husband have a profile such that they face extreme scrutiny on return to Vietnam, and that they are likely to be charged, investigated, and considered for rehabilitation camps. It is submitted they face a real chance or a real risk of being harshly treated by the Vietnamese authorities in administrative detention and compulsory drug detoxification centres.
The Tribunal has assessed these claims below first individually and then cumulatively.
The applicant’s drug use
According to her oral evidence to the Tribunal, the applicant used the drug ‘ice’ with her husband briefly when she first came to Australia in 2010 and then occasionally before her husband was removed from Australia in 2012. She stated she has not used drugs since that time – “for a long time”. The Tribunal accepts the applicant used ‘ice’ briefly in the past and that she has not used drugs since 2012. In the circumstances where the applicant was an occasional drug user more than five years ago, has not used drugs for a long time, the Tribunal finds the applicant is not a drug user.
The applicant stated that no-one in Vietnam is aware of her past drug use. Given the applicant’s family and Vietnamese authorities are not aware of the applicant’s drug use, the Tribunal considers that the chance the applicant will be characterised as a drug user by anyone on return to Vietnam is remote. The applicant indicated that she is scared that her family and/or the authorities will find out about her drug use. Given that her drug use occurred over five years ago in [city], geographically and socially distant from Vietnam, the Tribunal considers this fear to be purely speculative. The Tribunal does not accept the applicant has a profile as a drug user with any one or that she will be characterised by anyone as a drug user on this basis.
The Tribunal has considered the applicant’s submission that she may be identified in Vietnam as a drug-user because she may relapse into drug use in the future as a result of the pressures she would face on return. The Tribunal notes the applicant’s evidence that she has not used drugs since 2012, and prior to that time used drugs on a very limited basis. The Tribunal also notes the applicant’s declarations at hearing that she has reformed and that she is focussed on caring for her children. The Tribunal acknowledges that the applicant may face difficulties in adjusting to Vietnam and re-establishing life there on return, and that this may place the applicant under some psychological pressure. However, the Tribunal also notes she has the protective factor of the support of her husband and his family. Taking all the factors into account, the Tribunal considers the chance the applicant will relapse into drug use on return is remote. The Tribunal does not accept there is a real chance or a real risk the applicant will be identified or characterised as a drug user for this reason.
Applicant’s profile as a drug user on the basis of her association with her husband
The applicant also claims she will be perceived as a drug user because of her association with her husband, who has also used drugs in the past. It is submitted that the applicant may come to attention for detention in a drug rehabilitation centre because she will be perceived to be a target for this treatment because of her association with her husband, who has also used drugs and who it is claimed is also a candidate for relapsing to drug use.
In this respect the Tribunal takes into account the applicant’s evidence and the evidence of her husband at joint hearing that he also used the drug ‘ice’ around the period of his arrest in June 2012 but that he ceased using drugs at that time and he did not use drugs in Vietnam in his return in the period July 2012 to January 2014. He stated he used ‘ice’ briefly about a year before the hearing but he thought of the best interest of his children and stopped and has since been drug free and in good health physically and mentally.

The applicant’s representative has characterised the applicant’s husband, who gave evidence in a joint hearing with the applicant, as a drug user. Given the time now past where the applicant’s husband has been drug free, considerably more than one year, and that at that time he used for a short time only before stopping, and given his stated motivation to remain this way, the Tribunal does not accept the applicant’s husband is a drug user. The Tribunal also takes into account the applicant’s husband’s evidence that he did not use drugs in Vietnam, a period where he was according to his own account under considerable pressure because he was separated from his wife. On the evidence of the applicant and her husband, the Tribunal finds the applicant’s husband is not a drug user. The Tribunal does not accept the applicant’s family, the community or authorities in Vietnam will perceive the applicant’s husband as a drug user on return to Vietnam.
The applicant’s husband stated that there is no reason for the Vietnamese authorities to arrest them, but because he used drugs before he is afraid that if he is in a bad situation or a bad mood, then he might relapse. The applicant’s husband told the Tribunal that he started using drugs because he didn’t see a future and felt stuck and followed friends who were using ice. He stated he used ‘ice’ around the period when he was arrested, and ceased use at this time. The applicant indicated to the Tribunal he was highly motivated not to use drugs again. He indicated that about a year earlier he had used ice again for a short period of time but he thought about his children and stopped. The applicant’s husband expressed remorse for his past conduct and stated that he hopes to have a normal life to compensate for things he should have done when he was young. He stated he was drug free in Vietnam. The applicant indicated that he is now in good health, physically and mentally.
The Tribunal acknowledges that the applicant’s husband may face a range of psychological pressures associated with re-adjustment to life in Vietnam and re-establishing himself and his family there. However, the Tribunal also notes the applicant’s husband is now [age] with a range of experience from which he appears to have built maturity. The Tribunal also notes that according to the applicant’s husband, he was drug free on his last return to Vietnam, a period of about 18 months. The Tribunal also takes into account that he will have the protective factor of the support of his wife and presence of his children. Taking all the factors into account, the Tribunal considers the chance the applicant’s husband will relapse into drug use on return to Vietnam is remote.
The Tribunal does not accept the applicant’s profile as a drug user will be enhanced by association with her husband because he will relapse into drug use. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm for this reason.
The applicant’s convictions
As above, the Tribunal accepts the applicant was arrested [in] January 2015 and convicted [in] April 2016 of ‘[a drug related offence]’. The Tribunal accepts the applicant received a prison sentence of nine months, and as she had been detained for fifteen months on remand, she was released.
The Tribunal also accepts the applicant’s husband was charged in Australia in June 2012 on drug related charges and in July 2012 he was convicted and sentenced to 30 days imprisonment as part of an aggregate sentence to be served concurrently. The applicant’s husband was then taken into immigration detention because he no longer held a valid visa to remain in Australia as his [temporary] visa was cancelled [in] May 2011.
The applicant told the Tribunal that neither the Vietnamese authorities nor anyone else knew of her convictions or her husband’s conviction. However, it has been submitted that it is likely that the applicant’s conviction will come to the attention of the Vietnamese authorities. It is submitted that the Australian authorities would disclose the couple's convictions to the Vietnamese authorities in the process of their deportation to Vietnam.
As discussed with the applicant, in the event she did not return to Vietnam voluntarily, she would not be returning to Vietnam as a criminal returnee (or deportee – a process only applicable to Australian permanent residents), but as someone who no longer has a valid visa to remain in Australia. On this basis, processes applicable to non-residents whose visa was cancelled on grounds associated with their criminal behaviour would not apply to the applicant. The Tribunal does not accept the applicant’s conviction will be disclosed as a part of a removal process.
The applicant’s husband was removed from Australia in 2012 because he no longer had a valid visa to remain in Australia. On the evidence before it there is nothing to indicate that the applicant’s husband, who returned and lived without adverse interest by the authorities for eighteen months before travelling again to Australia was identified in any way by the Vietnamese authorities on return as a person who had a drug conviction against him. On this basis, the Tribunal does not accept that the applicant’s husband’s conviction came to the attention of the Vietnamese authorities on his removal in the past or that it would be disclosed to the authorities in any future removal process, involuntary or otherwise, as a person who does not have a valid visa to remain. On this basis, the Tribunal does not accept that the Australian authorities would disclose the applicant’s husband’s conviction to the Vietnamese authorities in the process of their removal to Vietnam.
[Details deleted].[15]
[15][Source deleted].
[Details deleted]. However, in discussion at hearing, the Tribunal noted the applicant’s husband was not in detention at the time of visit of the Vietnamese officials, and the Tribunal does not accept that this event in 2013 is relevant to the applicant’s circumstances, or those of her husband, or that it is indicative that the Australian authorities will disclose to the Vietnamese authorities any matters concerning the applicant’s criminal or immigration history. The Tribunal does not accept the Australian authorities will disclose the applicant’s convictions or those of her husband to the Vietnamese authorities.
However, the Tribunal accepts the applicant and her husband have each been convicted in an open court and on this basis there is a chance the Vietnamese authorities may become aware of her offending given that it is a matter on the public record.
The Tribunal has considered how the applicant’s conviction would be regarded by the Vietnamese authorities in the event they became aware of it. The Tribunal notes the applicant was convicted for [a] drug related crime, for which she was sentenced to nine months in prison. The Tribunal considers such a sentence indicates that the Court in Australia considered the applicant’s offence to be serious, but it was considered at the low end of seriousness. The Tribunal notes that penalties for drug offences in Vietnam are severe including the death penalty for some drug trafficking offences in Vietnam, suggesting that drug offences can be considered serious. However, the Tribunal has found no information to indicate the level of offending of the applicant will be regarded as serious, and as discussed further below returnees who have served time even for drug offences regarded as serious have not faced problems on return to Vietnam.[16] The Tribunal has reached the conclusion that the applicant’s offence, while it may be regarded somewhat more seriously in Vietnam than Australia, will not confer upon her a profile as a medium level or serious offender.
Consideration for/detention in a drug rehabilitation centre
[16] DFAT Country Information Report No. 54/99, dated 25 February 1999, CX33942; DFAT Country Information Report No. 13/05, 7 February 2005, CX113467
Central to the applicant’s claim in respect of her profile as a person who faces a real chance of serious harm or a real risk of significant harm from the Vietnamese authorities, is the claim that she will be detained in a drug rehabilitation centre. In considering whether there is a real chance or a real risk the applicant will be detained in a drug rehabilitation centre, the Tribunal has taken account of the following wide range of independent country information put to the applicant regarding arbitrary arrest and detention in detoxification/rehabilitation centres in Vietnam.
The Tribunal has had regard to DFAT advice, discussed with the applicant that:
4.10 Vietnamese law allows the government to detain people without charge indefinitely under ‘national security’ provisions. There are credible reports of the government arresting and detaining individuals indefinitely, with activists across the country also being subject to administrative detention or house arrest. Access to legal representation is granted inconsistently, with people held on national security charges reporting irregular access to legal counsel and limited access to materials relevant to their legal defence.
4.11 The United Nations Working Group on Arbitrary Detention has issued opinions finding around 30 cases where people are currently being arbitrarily detained in Vietnam. The Working Group recently adopted Opinion 33/2013 regarding the case of Le Quoc Quan, a human rights activist and blogger who had been sentenced to 30 months prison for tax evasion. The Working Group’s opinion declared that the ‘deprivation of liberty of Mr Le Quoc Quan is arbitrary, being in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights and Articles 9 and 14 of the International Covenant on Civil and Political Rights to which Vietnam is a party’. This opinion followed similar findings regarding four detainees in 2012 and seven detainees in 2011.
4.12 Around 32,000 drug users are detained in administrative centres, without charge and with limited judicial involvement. Drug users reportedly spend an average of one to two years in these centres. There is a high rate of recidivism. Credible reports indicate that at the completion of their initial term, a second term of around two years is often arbitrarily imposed. There have been reports of harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The centres are often reported to be profitable for those managing them due to the forced labour practices. [17]
[17] DFAT, Vietnam Country Information Report, 31 August 2015, p. 16.
Also before the Tribunal is information from the United States Department of State 2016 Country Report on Human Rights Practices discussed with the applicant that:
Arbitrary arrest and detention, particularly for political activists, remained a serious problem. Authorities arrested and detained individuals on allegations of revealing state secrets, subversion, taking advantage of democratic freedoms to infringe upon the government’s interest, conducting propaganda against the state, undermining the unity of the state, and other crimes as a means to suppress political dissent and public advocacy.[18]
[18] US State Department 2016 Country Report on Human Rights Practices.
The Human Rights Watch (HRW) World Report 2013: Vietnam, covering events of 2012, published on 31 January 2013, discussed with the applicant, states:
Vietnamese law continues to authorize arbitrary “administrative detention” without trial. Under Ordinance 44 (2002) and Decree 76 (2003) persons deemed threats to national security or public order can be placed under house arrest, involuntarily committed to mental health institutions, or detained at “re-education” centers.[19]
[19] Human Rights Watch, World Report 2013 (Events of 2012), 31 January 2013, >
The Tribunal has also considered information discussed with the applicant from a range of other sources concerning drug detention/rehabilitation centres. The United Kingdom Home Office: Vietnam country of origin information report of August 2013 references a report The Report of the Special Rapporteur, published on 4 June 2012, stated:
There are two categories of rehabilitation centres: “05 centres” for FSWs [Female Sex Workers] and “06 centres” for PWUD [Persons Who Use Drugs]. During meetings with representatives of the Ministry of Labour, Invalids and Social Affairs, the Special Rapporteur learned that there are 183 rehabilitation centres with 46,000 detainees called “learners”). Between 2000 and 2010, approximately 309,000 people, including minors, had been detained. The stated purpose of these centres is to “improve [the] health, living and occupational skills” of detainees and to “construct their awareness about the value of the labour, and their responsibilities toward themselves and their communities”. In order to accomplish these goals, the centres employ variety of approaches: labour therapy, moral education and vocational training. As a part of labour therapy, detainees are forced to perform labour for little to no remuneration. While some treatment for communicable diseases, including HIV/AIDS and tuberculosis, is available in some of the centres, many centres do not possess adequate HIV/AIDS and tuberculosis prevention, treatment and care services.‟ [20]
[20] United Kingdom Home Office, Vietnam: country of origin information report, 9 August 2013.
The United States’ report on human rights in Vietnam, states:
According to the law on administrative sanctions, authorities may confine drug users to “compulsory detoxification establishments” (previously referred to as “06” centers or “compulsory treatment institutions”). The law requires a judicial proceeding before sending any individual to a compulsory detoxification establishment.[21]
While the country made progress in replacing administrative detention of drug users with judicial proceedings and referring HIV-positive patients for outpatient treatment, there were no official reported figures for access to HIV treatment or medication-assisted treatment for substance abuse disorders among detainees, most notably at compulsory detoxification centers. The country maintained a population of approximately 17,680 persons in the “06 center” system that, by MOLISA’s conservative estimate, had a high HIV-prevalence rate of 13 percent.[22]
[21] US State Department 2016 Country Report on Human Rights Practices, p. 13.
[22] US State Department 2016 Country Report on Human Rights Practices, p. 48.
The Tribunal also had regard to country information from the US Department of State provided to the Tribunal by the applicant that:
The government continued to confine drug users in "compulsory detoxification establishments" (also referred 10 as "06 centers"). A 2014 report published by the International Labor Rights Forum stated forced labor and mistreatment continued at 06 centers, including detainees forced to produce goods for private companies. During the year there was anecdotal evidence that forced labor continued to occur at some drug rehabilitation centers.
The country maintained a population of approximately 17,680 persons in the "06 center" system that, by MOLISA's conservative estimate, had a high. HIV-prevalence rate of 13 percent.[23]
[23] United States Department of State, 2015 Country Reports on Human Rights Practices – Vietnam, 13 April 2016.
As discussed with the applicant, the Human Rights Watch have reported on drug detention centres in southern Vietnam where forced labour and other abuses occur.[24] The United Kingdom cite an Integrated Regional Information Networks (IRIN) news article of 9 May 2011 which reported on drug treatment centres in Vietnam, noting that:
More than 90 per cent of injecting drug users held at these centres relapse into drug addiction upon release, according to UNAIDS. Beneficiaries at the centres, which began opening in the mid-2000s, are supposed to receive counselling, health checks, and vocational training to assist recovery and prevent relapse. But according to health experts, employees are not trained to treat drug addiction, and the fear of being sent to the centres encourages drug users to go underground.‟ Further adding: „When Vietnamese heroin addicts leave compulsory treatment centres, they face a “palpable and substantial” societal stigma against drug use, said Robert Ali of the World Health Organization‟s (WHO) Collaborating Centre for Research into the Treatment of Drug and Alcohol Problems. Vietnam has made significant drug policy reforms since the mid-1990s, but most Vietnamese citizens and officials still see drug addiction as a “moral weakness” or “social evil” rather than a medical disease with a social dimension, Ali said.[25]
[24] Human Rights Watch, The Rehab Archipelago, 7 September 2011.
[25] VIETNAM: Compulsory drug treatment centres counterproductive, 9 May 2011
The Tribunal has also had regard to country information provided to the Tribunal by the applicant that supports the country information discussed with the applicant at hearing that drug rehabilitation centres continue to operate and sets out information about claimed human rights abuses faced by drug users in Vietnam, particularly in the form of forced rehabilitation, including information from Human Rights Watch concerning compulsory rehabilitation centres and their use under Vietnamese law, and describes human rights abuses, such as forced labour, occurring in these centres. In a report of 2016 provided to the Tribunal by the applicant, escapes from drug rehabilitation were discussed:
Why are people so desperate to flee "rehabilitation" in Vietnam? Official Vietnamese media gave one reason for this latest breakout: overcrowding. The center has a capacity for around 600 people, but the number of detainees prior to the escape was 1,481. The larger point is that these people shouldn't be in these centers in the first place. When we researched conditions ill drug detention centers in southern Vietnam former detainees told us they were held without due process for up to five years, and subject to beatings by guards or held in solitary confinement in. "disciplinary rooms" for breaking center rules. Not one of them described any form of scientifically or medically-appropriate drug dependency treatment."[26]
[26] Pearshouse, R., Vietnamese Drug Users Make A Break For Freedom, Human Rights Watch, 25 October 2016, available at htlps://
Having regard to the advice cited above, the Tribunal accepts that arbitrary arrest and detention continues in Vietnam as a means to suppress political dissent and public advocacy. The Tribunal accepts arbitrary arrest and detention continues particularly for people perceived to be political activists, or a risk to national security or public order, including people who reveal state secrets, are involved in subversion or taking advantage of democratic freedoms or any other activity that undermines the government and the unity of the state. The Tribunal also accepts the Vietnamese authorities run a number of drug detoxification/rehabilitation centres where people are held under administrative detention and where there is the capacity to detain people without due process/arbitrarily. The Tribunal has considered whether the information before it supports the conclusion that there is a real chance or real risk the applicant will be arbitrarily detained in this way.
The Tribunal has considered whether the applicant has a profile of a person who does not support the Vietnamese authorities, or a person who holds opposition or dissident or activist views. At hearing, the applicant expressed no political view other than concern about her economic future and concerns about pollution affecting [business]. In her written statement the applicant made a generalised statement that there is a lack of freedom, discussed below. On the evidence before it the applicant has not at any time expressed dissident views or conducted herself in a manner that could be construed as implying political dissent or activism. Further, the Tribunal has conducted extensive research and on the evidence before it, the Tribunal does not accept the applicant’s relatively low level, and now aged, drug-related offence will be perceived as expression or evidence of dissenting political views. Nor does the Tribunal accept that the applicant has an adverse political profile on cumulative grounds as a person with a drug related criminal conviction who left Vietnam illegally or who has an association with some-one who also left Vietnam illegally and has an even more low level criminal conviction, as a political activist or a person who is a threat to national security or a threat in any other respect. The Tribunal assesses the chance the applicant will be of any adverse interest to the authorities of a kind that might lead to arbitrary detention in any facility is remote. The Tribunal does not accept the applicant will be arbitrarily detained in any facility, including a detoxification facility arising from her actual or imputed political opinion.

[31] DFAT Country Report: Vietnam, 31 August 2015, pp.15-16
[32] DFAT Country Report: Vietnam, 31 August 2015, pp.15-16.
117. The Tribunal has also considered the claim that the applicant has lived in Australia for an extended period of time and this will lead to the imputation of political views. On assessment of all the country information before it, the Tribunal found no information to support a finding that the Vietnamese will impute political opinion on the basis of the length of time a person has been absent from Vietnam. Taking into account the finding above that the applicant has no profile as a political activist or dissident, the Tribunal does not accept the applicant will have an adverse political profile because she has lived in Australia for an extended period.
118. Based on the applicant’s individual circumstances and the independent country information, the Tribunal does not accept that there is a real chance the applicant faces serious harm because of her extended stay in Australia whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as a person who is returning to Vietnam from the West after an extended stay overseas). Further, the Tribunal finds there are not substantial grounds for believing there is a real risk the applicant will suffer significant harm on this basis.
Illegal departure
119. The Tribunal has considered whether the applicant has a real chance of serious harm or a real risk of significant harm on return to Vietnam because she will be punished for departing Vietnam illegally using the passport of a friend. The applicant’s representative submits the applicant’s unlawful departure would become known to the Vietnamese authorities in the Department’s administrative processes associated with establishing documentation for her return to Vietnam and that it would be highly likely to lead to detention on return. The Tribunal does not accept the proposition that the applicant’s departure from Vietnam using a fraudulent identity will become known to the Vietnamese authorities arising from the Department’s removal processes given that there is no longer any doubt about the applicant’s identity which is known to the Australian authorities because she produced her own passport to the police. However, the Tribunal accepts it may become known to the Vietnamese that the applicant departed on another identity through their own records.
120. It is submitted that Articles 273 and 274 of the Penal code expose both the applicant and her husband to imprisonment of up to five years.[33] The applicant’s representative submitted that the applicant’s husband would face imprisonment of between two and seven years under Article 275 of the Penal Code, if the authorities were of the view that his actions in supporting his wife to come to Australia as an imposter on his friend’s passport and some years later using a service to obtain a passport in another identity caused serious or very serious consequences, an undefined term, which he would be liable for imprisonment of between five and twelve years.[34]
[33] AAT, 1507731, ff. 162 - 163
[34] AAT, 1507731, ff. 162 - 163
121. In the post hearing submission of 14 March 2017, the applicant’s representative also submitted country information from Human Rights Watch concerning a 2015 incident where some individuals were arrested on return to Vietnam for illegally leaving the country, and suggested that this indicates that Vietnam prosecutes illegal departures and that the government's word cannot be relied upon, nor their actions predicted. It is submitted that the applicant and her husband are likely to face serious harm as a result of their having departed the country unlawfully.
122. As discussed with the applicant, the Tribunal accepts the DFAT advice above that there are penalties for leaving Vietnam illegally. On the basis of the DFAT advice, discussed with the applicant, the Tribunal finds the applicant, who departed Vietnam on another person’s documents is liable to be fined between VND 2 million and VND 10 million (approximately AUD 120 – 600).
123. In reaching this conclusion, the Tribunal has had regard to information from the Vietnam Human rights Network (VHRN) cited by the Research Directorate, Immigration and Refugee Board of Canada, Ottawa in 2014.[35] The VHRN give examples of people who are given custodial sentences.[36] However, the Tribunal notes that the information indicates that those who use fraudulent documents may face penalties; the penalty depends on the person and the circumstances and the examples cited involve people such as dissidents, political activists and human rights defenders, organisers, coercers and instigators. This is not the applicant.
[35] AAT, 1507731, f. 125.
[36] AAT, 1507731, f. 125.
124. The Tribunal has also had regard to information about the Vietnamese Penal Code submitted by the applicant’s representative that indicates that offenders who use illegal documents in an organized manner, committing a crime more than once, may be regarded as being involved in serious crime with serious consequences.[37] The Tribunal takes into account that the applicant travelled on a fraudulent passport on one occasion and that four years later, her husband purchased for himself a passport from another source, a travel service. On the information available to it, the Tribunal does not accept this conduct would in any construction be considered as organized serious crime. The Tribunal does not accept that either the applicant or her husband will be penalized for having committed a serious crime with serious consequences.
[37] AAT, 1507731, f. 125.
125. The Tribunal has had regard to a report submitted by the applicant’s representative concerning judicial proceedings against people who were involved in the organization of the illegal departure of people by boat, where people had "chipped in... Those who had more contributed more, while those who had less contributed less." It is suggested that the organizers of this venture were not “people smugglers” in the traditional sense but that they faced sentences normally reserved for organizers of formal people smuggling ventures. It is suggested the arrangement whereby the applicant obtained a passport and visa from her husband’s friends was similar to this incident in that it was an informal ‘people smuggling’ arrangement and that the penalty will be a custodial one as in this case. On the evidence before it, the Tribunal does not accept the suggestion that a one off, isolated use of a false passport will be considered by the Vietnamese authorities as equivalent to people smuggling or commensurate with organising a people smuggling venture. The Tribunal does not accept that the applicant will attract a custodial sentence penalty for use of someone’s passport for this reason.
126. Taking into account the applicant’s circumstances and giving weight to DFAT independent advice, that while some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security, the Tribunal finds the applicant will not be held for anything other than a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to investigating her use of false documents to depart Vietnam.
127. Regarding the issue of the applicant being questioned on return and subsequently fined for departing using another person’s documents, the Tribunal does not consider being questioned or having a fine imposed in these circumstances to be instances of serious harm as defined in s.91R(2). The Tribunal notes the guidance of the High Court in MIBP v WZAPN[38] with respect to the issue of temporary detention. In reaching that conclusion, the Tribunal considers that the applicant will face a short period of questioning regarding the manner of her departure and time spent in Australia, on return to Vietnam, but does not accept she will be harmed during this questioning, as detailed in the country information.
[38] MIBP v WZAPN; WZARV v MIBP [2015] HCA 22
128. In considering whether the applicant will be harmed during this questioning, the Tribunal has taken into account the applicant’s claimed psychological vulnerability. As discussed below, the Tribunal considers that while the applicant has experienced some psychological hardship in the past, the Tribunal does not accept the applicant is experiencing any psychological health issues. The Tribunal does not accept that the applicant has any other vulnerability such that exposure to the questioning and short term detention amount to serious or significant harm. Furthermore the imposition of a fine for using fraudulent documents is under a law of general application and therefore does not amount to persecution, as defined in s.91R(2). The Tribunal also notes that the applicant and her husband stated that they are in touch with her parents-in-law virtually every day, and the Tribunal is satisfied that in the event the applicant does not have the means to pay this fine herself, her parents-in-law who own assets such as their house will assist her to pay any fine imposed. On the evidence before it, the Tribunal finds that the applicant will be able to pay any fine imposed arising from her use of another person’s documents.
129. On the country information above, discussed with the applicant, the Tribunal accepts the applicant may be detained and interviewed in order to obtain information about her departure. Having regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in s.5 and s.36(2A) of the Act, the Tribunal has considered whether a brief detention and interview constitute serious or significant harm as defined. The Tribunal finds that a brief detention and interview do not constitute serious or significant harm as defined.
130. Based on the applicant’s individual circumstances and the independent country information, the Tribunal finds that the applicant does not face a real chance of serious harm on account of her use of a fraudulent passport obtained from a friend of her husband now or in the foreseeable future.
131. Based on the applicant’s individual circumstances and the independent country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that she will suffer significant harm because she departed Vietnam unlawfully.
Human rights
132. The Tribunal has considered the applicant’s written statement that there is a lack of freedom in Vietnam. It is submitted that the Vietnamese government has cracked down on perceived dissent in the context of the recent Formosa disaster. While the Tribunal acknowledges reports provided by the applicant suggest this may be so, on the basis of the vague and limited evidence of the applicant at hearing the Tribunal does not accept that the issue of human rights in Vietnam has been in the past or is currently a concern to the applicant. Given the opportunity to discuss human rights concerns and explain how it is relevant to her situation, the applicant provided no detail as to this aspect of her claims. The applicant has not claimed to have had any political or social interests curtailed by the authorities in Vietnam in the past, and could not detail what concerns she might have in the future, although she stated that her husband was concerned about the effect of pollution on the [business]. The Tribunal considers the applicant’s vague and limited response is because the human rights situation in Vietnam has had no effect on her. The Tribunal considers that the applicant does not have any fear of harm for this reason. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.
Economic factors
133. The Tribunal has considered the applicant’s claim that she is worried about hers and her husband’s economic prospects in Vietnam and she does not know how she and her family will survive if returned to Vietnam because she is not educated and her husband’s family business [has] been affected by [external circumstances].
134. It is submitted that the applicant and her husband and children will be unable to survive in Vietnam because the area where the applicant’s husband’s family resides [has] been polluted with chemicals which has negatively affected the family’s ability to earn a livelihood. As a result of the contamination, the applicant’s family business has gone into insolvency. The applicant’s husband told the Tribunal that his parents had a [business]. He stated that when he returned in 2012 the business was not going so well because [details deleted]. He stated that his parents used to have a number of assets but these have dwindled and they closed the business and have moved to another location where they have their own home. On the consistent evidence of the applicant and her husband, and having regard to country information provided to the Tribunal, the Tribunal accepts the applicant’s parents-in-law closed their [business] because [details deleted].
135. The Tribunal discussed with the applicant DFAT country information dated 31 August 2015, indicating that although economic growth rate of 7.5 per cent in 2007 has slowed somewhat, it remains steady at 5.7 per cent and that this growth has driven a large reduction in poverty.[39] As put to the applicant, DFAT advice states:
This economic growth performance has driven a large reduction in poverty rates and led to Vietnam achieving lower middle income country status in 2009, with per capita income levels rising to over USD 2,000 by the end of 2014. Extreme poverty rates in Vietnam have fallen from 63.8 per cent in 1993 to 2.4 per cent in 2012.[40]
[39] DFAT, Country Information Report Vietnam, 31 August 2015.
[40] DFAT, Country Information Report, Vietnam, 31 August 2015, p.4

136. The Tribunal accepts the applicant does not have qualifications and that her main past experience has been assisting her parents-in-law in their [business]. However on her evidence, the applicant is in sound health and she indicated there was nothing preventing her from working. Noting the relevant country information regarding Vietnam’s generally positive economic performance, the Tribunal is satisfied the applicant will be able to obtain employment and support herself at a basic level in Vietnam. In this respect the Tribunal also notes that she and the applicant child have the economic support of her husband, who according to his evidence at the joint hearing completed secondary [school]. While the applicant’s husband’s family may no longer be running their business, according to the applicant’s husband they have moved into a new home and based on the conduct of her husband’s family in providing support to the applicant and her family in the past, the Tribunal is satisfied the applicant and the applicant child will have accommodation and support.
137. In consideration of this claim the Tribunal has had regard to s.91R(1) of the Act that states that persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The High Court has explained that persecution may be directed against a person as an individual or as a member of a group, and persecution implies an element of motivation on the part of those who persecute for the infliction of harm. The feared persecution 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 applicant claims to fear harm because her family’s economic prospects have been diminished because of pollution in the local seas. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from her economic circumstances on return to Vietnam because her concerns do not arise for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion, nor do they arise from systematic or discriminatory behaviour.
138. The Tribunal has also assessed this claim under the complementary protection criterion. Taking into account the circumstances of the applicant and the applicant child and the country information set out above, the Tribunal finds the applicant will be able to find employment in Vietnam and will be supported on a day to day basis by her husband, who will also find employment, and have the support of her husband’s family. Having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal finds that any economic difficulties the applicant or the applicant child may suffer do not constitute significant harm to the applicant or the applicant child as exhaustively defined. The Tribunal finds there are not substantial grounds for believing that as necessary and foreseeable consequence of the applicant and the applicant child being removed from Australia to Vietnam there is a real risk that either will suffer significant harm.
Psychological vulnerability
139. The Tribunal has considered whether the applicant has a real chance of serious harm or a real risk of significant harm on return to Vietnam because she is psychologically vulnerable due to the harm she has experienced, her family circumstances, and her fear of return to Vietnam. The Tribunal acknowledges the applicant has faced psychological hardship in the past, including separation from her family at an early age, separation from her husband and her daughters at various times, and a lengthy period in prison during which she had a miscarriage. In response to the Tribunal’s enquiries about the applicant’s health generally, the applicant told the Tribunal her health is satisfactory although she sometimes has headaches and her vision is not good. The applicant did not indicate she was experiencing mental health concerns.
140. As above, the Tribunal acknowledges that after seven years in Australia the applicant may face difficulties in re-adjusting to Vietnam and re-establishing life there on return, and that this may place the applicant under some psychological pressure. However, the Tribunal notes the applicant is now a mature person of [age] who is in a settled, supportive relationship. As noted above, the applicant will have the emotional support of her husband and his family on return. She will also be re-united with her older daughter, separation from whom she states gives her cause to be sad and concerned. On the evidence before it, the Tribunal does not accept the applicant has psychological vulnerabilities such that she faces a real chance of serious harm arising from challenges associated with adjustment on return to Vietnam. The Tribunal had also had regard to s.91R(1) of the Act and found that the applicant’s fear is not for reason of a Convention ground. The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis.
141. The Tribunal has also assessed this claim under the complementary protection criterion. Having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal finds that any difficulties associated with re-adjustment on return to Vietnam do not constitute significant harm as exhaustively defined. The Tribunal does not accept that there is a real risk that the applicant will suffer significant harm as defined in s36(2)(B) of the Act on this basis.
142. The Tribunal has considered all of its findings above both singularly and cumulatively, and finds there is not a real chance the applicant will be persecuted for reason of her membership of a particular social group, “a person perceived by authorities to be associated with the drug trade or drug use”; “a person who departed from Vietnam unlawfully”; and “a person who sought asylum in another country” or her imputed political opinion, or any Convention reason if she returns to Vietnam, now or in the foreseeable future.

143. The Tribunal has considered the applicant’s claims singularly and cumulatively. On the evidence before the Tribunal and having regard to the Tribunal’s findings of fact above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment as defined. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm for the purpose of s36(2)(aa).
The applicant child
144. The Tribunal has considered whether the applicant child faces a real chance of serious harm or a real risk of significant harm on return to Vietnam for any reason. The Tribunal has considered the claim that in the event the applicant is interned in a drug detoxification/rehabilitation centre for any reason, the applicant child would be separated from her mother, and that this separation would amount to serious or significant harm.
145. The Tribunal has found above that there is not a real chance or real risk that the applicant will be charged, investigated, considered for rehabilitation camps or detained in a drug detoxification/rehabilitation centre as a drug user/person with a drug related criminal history/a person associated with her husband/ a person who departed Vietnam using a fraudulent passport/or a person who sought asylum in another country or for any reason. It follows that the Tribunal does not accept the applicant child will be separated from the applicant, her mother. The Tribunal does not accept that the applicant child has a real chance of serious harm now or in the foreseeable future because she will be separated from her mother who will be detained or interned. Further, the Tribunal finds there are not substantial grounds for believing that there is a real risk the applicant child will suffer significant harm upon return to Vietnam on this basis.
146. The Tribunal has considered the claim that the applicant child will be separated from her mother because her maternal grandparents will use legal or illegal means to gain custody of the child. The Tribunal has found above that the applicant child does not face kidnapping or any other mistreatment by her maternal grandparents. The Tribunal also notes that efforts by the applicant’s parents to obtain access to the applicant’s older child were not supported by authorities such as the school and police even at a time when the applicant was not in Vietnam. The Tribunal also takes into account the applicant’s evidence that her parents have not made any attempt over a significant period to have access to the older child. The Tribunal also notes that the applicant child will be going to Vietnam in the care of both her parents. In all these circumstances, the Tribunal considers the chance or risk the applicant child’s maternal grandparents will separate the applicant child from her mother and father is remote. For this reason, the Tribunal does not accept there is a real chance or a real risk the applicant child will be separated from her mother (or father) by anyone or by any means on return to Vietnam. The Tribunal finds the applicant child does not have a real chance of serious harm or a real risk of significant harm on return to Vietnam on this basis.

The Tribunal has considered whether the applicant child’s development will be affected as a result of the dislocation she would experience departing Australia, as a child born in Australia who is now [age], and who has never visited Vietnam. The Tribunal finds these matters have no Convention nexus and do not involve systematic and discriminatory conduct. On this basis, the Tribunal finds the applicant child’s fear of persecution is not well-founded.
The Tribunal has also considered whether the applicant child has a real risk of significant harm for this reason. Having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal has considered the claim that return to Vietnam will result in dislocation for the child affecting her development. The Tribunal accepts the applicant child may experience some initial difficulties adjusting to life in Vietnam. However, the Tribunal considers that the applicant child will have the emotional and practical support of her parents and extended family in Vietnam and that while the applicant child will have to make adjustments and this may be challenging initially and have a low level impact on her development in the short term, that such implications of adjustment do not constitute significant harm as exhaustively defined.

149. The Tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds that the applicant child does not have a real chance of serious harm now or in the foreseeable future for any reason. The Tribunal does not accept the applicant child has a well-founded fear of persecution resulting from her membership of a particular social group, as “a child of a person perceived by authorities to be associated with the drug trade or drug use”; “a child of a person who departed from Vietnam unlawfully”; or a “a person who sought asylum in another country.” The applicant child’s fear of persecution is not well founded.
150. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not substantial grounds for believing that there is a real risk the applicant child will suffer significant harm on return to Vietnam.
CONCLUSION
151. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
152. Having concluded that the applicants do not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
153. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
154. The Tribunal affirms the decision not to grant the applicants Protection visas.
Amanda Paxton
Member

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Citations

1507731 (Refugee) [2018] AATA 408

Cases Citing This Decision

Cases Cited

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Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

[2018] AATA 408

24 January 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction