1509349 (Refugee)

[2017] AATA 590

1509349 (Refugee) [2017] AATA 590 (30 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509349

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Roslyn Smidt

DATE:30 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2017 at 11:20am

CATCHWORDS
Refugee – Protection visa – Vietnam – Political opinion – Dissident views on a blog – Political activists – Questioning by police – Political activities in Australia – Delay in protection application

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Vietnam, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal on 27 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   THE RELEVANT LAW

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

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

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

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

8. 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’).

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

   BACKGROUND

10. The applicant is [an age] year old single woman from [her home town], Quang Ninh Province Vietnam. She arrived in Australia at the age of [age] in November 2006 on a student visa. She completed the final two years of high school and then studied at university in [Australia] until November 2012. She has lived with her [relative] since arriving in Australia. Her [siblings] are currently studying in Australia and her mother resides in Australia on a guardian’s visa. Her father remains in Vietnam.

11. After arriving in Australia the applicant returned to Vietnam on five occasions, once in 2007, twice in 2009, once in 2010 and most recently in 2011 when she departed [in] December 2011 and returned [in] February 2012. She applied for protection [in] October 2014.

    SUMMARY OF CLAIMS

12. The applicant claims that she is at risk of serious or significant harm in Vietnam for reasons of political opinion because she posted dissident views on her blog prior to her departure from Vietnam in 2006 and she has been involved with political groups and activities in Australia.

    FINDINGS OF FACT

13. For the reasons set out below, I did not find the applicant to be a truthful or a credible witness. I believe that she concocted her evidence regarding her activities and the problems she faced in Vietnam and that she has exaggerated her participation in political groups and activities in Australia.

    Activities and problems in Vietnam

14. The applicant has consistently claimed that she expressed views critical of the Vietnamese government on a blog she began [as a teenager] and that she was interrogated by police because of this prior to her departure from Vietnam and in 2011.  I do not accept these claims.

15. In the first place, I find it highly unlikely that [an early teenager] in Vietnam in 2004 would have had the knowledge of dissident politics claimed by the applicant or that she would have been able to establish a political blog which gained a following of several hundred people and ran for at least a year before being closed as claimed by the applicant.

16. Second, and more significantly, despite claiming that she left Vietnam in 2006 largely because she feared that her blog had been or would be discovered, the applicant travelled home repeatedly between 2007 and 2011 and did not apply for protection until 2014. If she had left Vietnam in 2006 because she believed her dissident views were known or likely to be discovered I believe she would not have travelled back to Vietnam and she would have sought protection in a more timely fashion.

17. In reaching this conclusion I have considered her claim at the hearing that she was not aware of the possibility of seeking protection until early 2011, but I find this implausible. Many Vietnamese have arrived in Australia as refugees in the past and I have no doubt that knowledge of this possibility is widespread in the Vietnamese community, in particular within the political and community groups with which the applicant claims to have associated. In these circumstances the applicant would have had no difficulty obtaining information about her options if she had sought advice, which I believe she would have done if she was genuinely fearful.

18. I have also noted the applicant’s evidence at the hearing when she said that she did not apply for protection between 2011 and 2014 because the lawyers and migration agents she approached told her that Vietnamese people could not obtain protection or that her claims were weak.  This may be true. If so, her inability to convince any professional that she had a case for protection in Australia suggests that she received honest advice, not that she was unable to apply for protection.

19. Third and most significantly, the applicant has given inconsistent and unconvincing accounts of her activities in Vietnam and the problems these activities caused her.

20. In her protection visa application lodged [in] October 2014, the applicant said that she had come to Australia to study and had not experienced any harm prior to her departure from Vietnam. She claimed that her fears related to her activities in Australia. She repeated this claim in her statement dated 20 April 2015, but also claimed that she had begun a blog her political views at the age of [age] and had been questioned by police as a result.

21. In the 20 April 2015 statement the applicant said that sometime after posting comments about an article by well-known [dissident] [in] April 2006 her blog was shut down by the government. About a month later local officials came to her house and said that the government suspected someone in the area was posting anti-government material and told them to report anyone who was suspicious. Following this she started a new blog using computers at internet cafes to avoid problems.  Later the police came to her house. They said that they suspected someone from her town was posting blogs and claimed that they had specific information about her and knew she supported a change of government. They took her to the police station where she was interrogated for a few hours and then released.  She realised that the police were trying to scare people to find out who the blogger was.  She and her family were very fearful and decided that she should apply for a student visa so she would leave Vietnam and continue her studies and her blogging. After she arrived in Australia her second blog was also shut down.

22. In a statement dated 28 May 2015 the applicant said that her parents were afraid that if she had remained in Vietnam the police would have eventually found out that she had been blogging. She also claimed that the local authorities had come to her parents’ home after her departure and asked if she was publishing material against the Vietnamese government in Australia.

23. During an interview by a delegate of the Minister for Immigration [in] June 2015 the applicant said that she had been fearful of problems in Vietnam from about July 2005 because she had been blogging anti-government opinions. She said that people were following her and coming to her house and asking her questions. The delegate noted that she had stated on her original application that she had not been fearful when she left Vietnam. The applicant said that she had been fearful when she left Vietnam.

24. The applicant said she believed that the authorities were aware that she had been blogging in Vietnam, but her evidence was confused and exactly when they realised that she was the blogger they were seeking remained unclear. She said that the authorities had located a blog from her IP address and they had inspected her computer, but she always used a private setting so they could not find anything. The delegate observed that she had previously stated that she used internet cafes to post on her blogs. She said that she began to do this after the officials came to her home the first time. She added that officials had told her that they found the IP address for the blogs posted at the internet café and they had checked the CCTV from the internet café and seen her and that records showed she was at the internet café when the blogs were posted. She denied any involvement and told them that she had just been playing games. She added that she had always deleted everything after using the computer and she was confident that she could not be traced. She said that her father forbade her to continue with the blog, but she would not stop and her parents sent her to Australia to study.

25. At the hearing held on 27 March 2017 the applicant confirmed that she had begun to post political comments on a blog when she was [age] years old. She said that she posted her views on the treatment of [a relative] and the views of dissidents which she learned from her [relative] or found on the internet. She said that she first experienced problems about a year later when she could not log onto her blog and realised it had been closed. She opened another blog about a month later. It was closed after about two weeks and she did not blog again after this.

26. When asked for more information about how long her blog had operated and when she was questioned by the police, the applicant’s responses were confused. She stated at different times that it had been 18 months between the time she began to blog in 2004 and the closure of the second blog, but also said that the second blog had been closed in 2004. She initially claimed that the police came to her home a year after the second blog was closed, but also said that they came in July 2015, about 6 months after the second blog was closed.  She stated at different said that she was [age] when the blog was closed and that she was [a year younger] at the time the officials came to her home. She finally stated confidently that she had been questioned by police in July 2015, about 6 months after the second blog was closed.

27. I observed that it seemed odd that the police would have come to her home 6 months after she stopped blogging.  She agreed it was odd and said she did not know why they came at that time.  She said that the police asked for her by name and took her to the police station. I observed that it was my understanding that she had not used her name on the blog. She said that she had used her first name and the police had mentioned this when questioning her. They also spoke about specific items which she had written about on the blog. She was kept at the police station for two hours and then released. After this her [parent] would not allow her to blog anymore and she did not blog again while in Vietnam.

28. I noted the evidence given by the applicant during the hearing appeared to be significantly different from the evidence she had provided to the Department. I noted that she had initially claimed that she was questioned sometime after posting information about [a dissident] in April 2006, that the she was first visited about a month after her first blog was closed, that she had been questioned twice by police before leaving Vietnam and that her blog had not been closed until after she left Vietnam. The applicant said that it was over 10 years since these events had occurred.  

29. I also observed that it seemed unlikely she would have been released after two hours if the authorities had evidence that she had a blog which posted political comments. She said that she did not know why she was released but perhaps they had insufficient evidence to hold her.

30. I noted that the applicant had told me that she ceased blogging in mid-2005, about 18 months before she left Vietnam and had no further problems with the authorities during that time which suggested she was not of interest to them. She responded that she did not think there was such a long gap between the time she was questioned and the time she left for Australia and it was probably in 2006 that she was questioned. She said that it was a long time ago and she could not recall whether she was questioned 18 months or 8 weeks before she came to Australia.

31. While I acknowledge that it is now over 10 years since the applicant left Vietnam to study in Australia and some of the discrepancies set out above could be the result of confusion, others are more serious. I do not accept that the applicant would have forgotten whether she was questioned by police 18 months before leaving Vietnam or only 6 months or indeed 8 weeks. Nor do I accept that she would have forgotten whether she was questioned once or twice or several times as suggested during her interview with the delegate. Overall I found her evidence regarding her activities prior to 2006 and the problems they caused unpersuasive.

32. After considering all of the relevant evidence, I do not accept that she posted anti-government political information or comments on a blog at any time prior to her arrival in 2006 or that she was suspected of posting blogs or questioned by police about her involvement in these activities at any time prior to her departure from Vietnam. I find that she concocted these claim to support her application for protection in Australia.

    Activities in Australia

33. The applicant also claims that she is at risk of serious or significant harm if she returns to Vietnam because of her political activities in Australia. For the reasons set out below, I do not accept that the applicant is a political activist or that she had any involvement in anti-Vietnamese government activities while in Australia.

34. In the first place, I found her evidence regarding her activities in Australia was vague and unconvincing.   

35. According to her protection visa lodged [in] October 2014 and her statement dated 20 April 2015 she feared returned to Vietnam because of her activities in Australia. She claimed to be an anti-communist political activist and support of the Viet Tan said that she had frequently attended weekend meetings and community events with  to raise awareness with friends from university (she commenced university in Australia in March 2010). When questioned about her activities in Australia by the delegate in June 2015 she said that she participated in the Viet Tan online forum, attended functions of the Free Vietnam Association in [suburb] and distributed leaflets to overseas students and others. She said that she had last attended a political event in April 2015.

36. At the hearing the applicant said she had been involved in political activities in Australia since her last year at high [school] and spoke in general terms about distributing leaflets and attending meetings. When asked for details she said that she had not attended any political events in 2017, that the most recent event in which she participated was in April 2016 and that she had attended about four protests or meetings in 2015.  When asked if she had any evidence of her participation in political groups and activities in Australia she said that she had provided evidence to her lawyer. I advised her that there was no such evidence on her Department or Tribunal files. Neither she nor her adviser, who attended the hearing by telephone, offered any comment or explanation in response.

37. If the applicant was a genuine activist who had been involved in political protests and events since 2009 or 2010 I believe she would have been able to provide a detailed and convincing account of these activities. Furthermore, I believe that she would have been able to provide some corroborating evidence such as membership documents or statements from fellow activists. I note that she has been represented by a registered migration agent since she lodged her application in 2014 and has had ample opportunity to provide any relevant evidence to the Department or the Tribunal.

38. Secondly, despite claiming at the hearing that she had been involved with anti-Vietnamese government activities in Australia since 2009 the applicant returned to Vietnam on a number of occasions and failed to apply for protection until 2014. If the applicant had been involved in anti-government activities in Australia which placed her at risk of harm in Vietnam I do not believe she would have returned repeatedly to her homeland or that she would have failed to apply for protection until 2014

    In these circumstances and in light of my finding that the applicant concocted claims regarding her activities in Vietnam prior to 2006, I do not accept that she has had any involvement in anti-government groups or activities that would be of interest to the Vietnamese authorities.

    2011 visit to Vietnam

39. The applicant returned to Vietnam most recently [in] December 2011 and remained there until [February] 2012.  She claims that she was questioned on arrival and interrogated and threatened by the police in her home town who continued to suspect her of blogging while in Vietnam. While it may be that she was briefly questioned on arrival about her activities in Australia, I do not accept that this occurred because the authorities had an adverse interest in her and I do not accept that she was questioned or threatened by the police in her home town.

1. In the first place, I do not accept that the applicant would have waited until 2014 to apply for protection in Australia if she had been questioned and threatened by the Vietnamese authorities in 2011 a manner which suggested that she was suspected of dissident activities or of adverse interest for any reason.

2. Secondly, as discussed above, I do not accept that the applicant was involved in or suspected of posting anti-government blogs prior to 2006.  It follows that I do not accept that she continued to be suspected of holding anti-government views or engaging in anti-government activities some 5 years later because she posted political views on a blog between 2004 and 2006.

3. Thirdly, as also discussed above, I do not accept that the applicant is or has been a political activist while living in Australia. Furthermore, there is nothing in the evidence before me which suggests that she was genuinely suspected of political involvement in Australia when she arrived in Vietnam in 2011. While it is plausible that the applicant may have been questioned about her activities in Australia when she arrived back in Vietnam after a long absence, as pointed out in the delegate’s decision, if the authorities had genuinely suspected her of being a political activist when she visited Vietnam in 2011 she would have faced more serious consequences that merely being questioned briefly at the airport and in her hometown.  

4. Fourth, the applicant has provided inconsistent evidence regarding her experiences in 2011. According to her written submission dated 28 May 2015, she was taken to the police station by the officers who stopped her in the street in her hometown. However, when she was interviewed by the delegate she said that she had been questioned in the street, but she not been taken to the police station.

5. After considering all of the relevant evidence I do not accept that the applicant was questioned or interrogated by airport officials or police on anyone else in Vietnam in 2011 because they suspected her of holding anti-government political opinions or being involved in anti-government groups or activities of any kind.

6. In reaching this conclusion I have considered the applicant’s claim that she was told to register with the police on arrival in her hometown.  It may be that airport officials told the applicant to register with the police when she arrived in her hometown. However, she was not detained or prevented from leaving and there is nothing in the evidence before me which suggests she was told to register because she was of adverse interest to the Vietnamese authorities.

   Questioning of the applicant’s parents

7. The applicant claimed in submissions to the Department and the Tribunal that her parents have been questioned about her whereabouts and activities once or twice a year since she departed Vietnam in 2011. In light of my findings regarding the credibility of the applicant’s claim regarding her activities in Vietnam and Australia, I also reject this claim.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant have a well-founded fear of persecution for a Convention reason in Vietnam?

8. There is no credible evidence before me which suggests that the applicant faces a real chance of suffering serious harm amounting to persecution if she returns to Vietnam within the reasonably foreseeable future for any of the reasons in the Convention. I am therefore not satisfied that she has a well-founded fear of persecution for any of the reasons in the Convention.

9. In reaching this conclusion I have noted that applicant’s representative’s submissions to the Department of Immigration regarding the treatment of Vietnamese dissidents. However, while I acknowledge that dissidents and those suspected of dissident activities can face significant problems in Vietnam, the applicant departed Vietnam legally and there is no credible evidence before me which suggests that she has been or would be suspected of involvement in any activities which would cause her problems on return to Vietnam.

10. I have also noted the submissions regarding the treatment of those who depart Vietnam illegally and failed asylum seekers. However, there is nothing in the evidence before me which suggests the applicant would face problems for real or perceived breaches of Vietnamese migration laws or that she would be suspected of applying for protection in Australia. She did not leave Vietnam illegally, she has travelled back to Vietnam on several occasions without experiencing any problems and at the hearing she provided a copy of her Vietnamese passport which is valid until 2020.

    Does the applicant meet the complementary protection criteria?

11. The applicant’s claim for complementary protection relies on the same claims as those put forward in her refugee application.  There is no credible evidence before me which suggests that the applicant faces a real risk of experiencing significant harm if she returns to Vietnam.  I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm

    CONCLUSION

12. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Roslyn Smidt
    Member