1510039 (Refugee)

1510039 (Refugee) [2017] AATA 1687 (13 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510039
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Saxon Rice
DATE:13 September 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2017 at 9:44am
CATCHWORDS
Refugee – Protection visa – Vietnam – Social group – Family victim of land confiscation – Anti -communism – Political activism – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] March 2015 and the delegate refused to grant the visa [in] July 2015.
The applicant appeared before the Tribunal on 31 August 2017 to give evidence and present arguments. The Tribunal was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant is represented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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 – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for protection filed [in] March 2015 and as set out in his statutory declaration dated [in] March 2015 are set out below:
My Claims For Protection:
7. I came to Australia as a student in end 2009.
8. My father has passed away. I lived with my mother and my step sister in Ho Chi Minh City. My mum arranged me to come to Australia as a student as she feared for my safety in Vietnam.
9. Since my father's passing away my mother has struggled to make a living for me and my sister. I experienced many hardships as a child. As I grew old I began to realise that these problems were created by the communist regime. So I began to dislike the communist regime, its harsh punishment of citizens, prohibitions and violations of human rights.
10. My mother told me stories about my uncles and their fellow villagers who lost their land rights, their protests and the punishments they received. I have many relatives in villages who are farmers. The communist government would not recognise individual rights to possess lands. People who have been living in their own lands for decades have lost their right to live in their lands. Lands were being confiscated for "economic development projects".
11. There are no transparency in the government's process of confiscating land and moving citizens to make way for infrastructure projects. These projects were for state owned enterprises.
12. During our school vacations I visited our relatives with my mother. I personally experienced what they have been through, the punishments they received for protesting against the corrupt government officials. These villagers are uneducated, poor and have no political affiliation. They were simply protesting to have their rights back or to have compensation. However, the government sees those protests as "attempts to overthrow government" These vague laws often enable the corrupt officials to punish innocent villagers. They have imprisoned two of my uncles.
13. From a very young age I was able to understand that many social and economic problems were caused by the corrupt communist system. Although there were severe restrictions for media including access to internet, I managed to have access to some internet sites which made me realise that there are many countries which value democratic freedoms and rights. I determined to fight for Vietnamese people's democratic rights.
14. I joined a few school friends who discussed politics in secret groups. I really liked what we discussed. We needed to change government our desire to change regime was real. However, we were too fearful to express our views in public.
15. I joined an association called "[Association 1] in February 2006. I was young, however, was desperate to do something to change the situation in Villages. I wanted help poor people to voice their concerns on loss of their land rights. I always thought of my people who have lost their rights.
16. At the beginning I could not fully contribute to the activities they organised as I was still schooling. However, once I completed [School] I had more time to commit to the Association. In July 2007 the nationwide farmers movement in Vietnam known as dan oan (victims of injustice) organised a giant protest in Ho Chi Minh City. I have participated in the protests with my fellow members of the Association.
17. One day after the protest, the police came to my home and interrogated me and my family. They warned my mum not to send me to these kind of activities.
18. The following year, in 2008 I had more freedom to continue my activities. I was [age] years old and completed my [studies]. In March 2008 I decided to join protests in my uncles at [Village 1]. That protest was to demand the return of [a number of] hectares of farmland belonging to [families].
19. Everything changed after that date. I felt that I was being monitored. Around late July 2008 the authorities again visited my home and interrogated me on my activities. I was taken to police in first week of August. The police tried to intimidate me. They showed me handcuffs. They forced me to make a confession as to my activities in [Association 1]. They said if I did not sign they would not allow me to eat or go home. They accused me of being a traitor. My mother was warned not to send me to protests ever again or expect to see me in prison. I knew that if I have lived in a village the repercussions would be worse. Police beatings, torture and imprisonment were the punishment for protesting against government.
20. In late 2008 my house was attacked by thugs. My mother complained the police. The police did not take any action. I knew that it was a further warning for my participation in protests.
21. I decided to avoid any activities upon my mother's advice. She begged me to refrain from any sort of antigovernment activities until she saves sufficient money to send me to Australia.
22. I was being followed and monitored by the police and the government authorities. I feared that they would come any time to arrest me with some fabricated charges. I was very fearful of my safety.
23. I arrived in Australia late 2009. Since my arrival I continued studying. I am currently enrolled in [a course]. I believe that my Australian qualifications will enable me to find employment to stay in Australia permanently. However, that option would not guarantee my safety. I cannot return to Vietnam and I need protection from Australia.
24. During my time as a student in Australia, I have joined anti-communist activities and protests in [City 1]. I had no fear participating in those events as I do not wish to return to Vietnam. Therefore, I decided to apply for protection. My friends in Australia encouraged me to apply for protection as they knew about my situation. I will face consequences if I return to Vietnam.
25. My mother continued writing letters and contact me over the phone during my stay in Australia. She said to me that the police has come to our family home twice asking about my whereabouts and the date of my return. They suspect that I left Vietnam to "avoid investigations”. This is a punishable offence. I have been blacklisted as an "activist".
26. My fear of return is real. My mother sent me to Australia to avoid any further investigation from authorities. I know that the authorities are angry as they have already begun investigating my activities. They consider that as "offensive". They consider it as "undermining the government's authority".
27. In the past, activists have been arrested for leaving the country while under investigation. Also they are likely to arrest me for breaching vague laws such as “abusing democratic freedoms" in Vietnamese Criminal Code.
28. I fear that the police will put me in jail, or put me in long term imprisonment if I return. My mother is very worried about the consequences I might face upon my return. I therefore seek protection from Australia.
The applicant has provided the Department a copy of his passport and English translation of his birth certificate.
The applicant attended an interview with the Department [in] June 2015. During that interview, he reiterated and expanded on his written claims.
[In] July 2015, the delegate made a decision that the applicant is not a person in respect of whom Australia has protection obligations and refused his application for a Protection Visa.
The applicant and his representative provided the Tribunal with a signed statutory declaration and submission dated [in] October 2016. In the documents, they outlined a number of explanations for the issues raised in the delegate’s decision. Relevant aspects of the applicant’s statutory declaration dated [in] October 2016 are set out below:
My Claims for Protection
5. I came to Australia as a student [in] November 2009 [and] remained in Australia since arrival.
6. My mother decided to send me to Australia as she wanted to protect me from punishment from Vietnamese authorities.
7. At the time, the quickest method of departing Vietnam was to obtain a student visa.
8. I had no difficulty in obtaining a passport to come to Australia. I obtained my passport by paying bribes to the authorities.
9. I knew I was being monitored and investigated. However, I managed to depart from the Airport by paying bribes to the immigration authorities.
My protection visa claim
10. Since childhood I was passionate about protecting land rights.
11. I have heard personal accounts of land confiscation from the members of my mother's family, living in villages [My] uncles were imprisoned for taking part in protests.
12. I was eager to voice my views against the government. However, as I was very young, I did not take part in any activities.
13. However, since I commenced [school], I decided to read information on the internet to improve my knowledge on politics. With my readings, I gained a better understanding of how the Communist regime was controlling the freedoms of Vietnamese citizens. I realised that Vietnam needs a democratic government.
14. I then began to have secret meetings with my friends at school to discuss politics. However, I was too fearful of expressing my views in public.
15. In February 2006, I decided to join an association called "[Association 1]."
16. I was involved in organising and attending meetings and protests as well as distributing leaflets. The meetings were held in secret locations.
17. During my time, I had contact with local leaders of the organisation but did not know them personally. It was the culture of that organisation not to reveal the names of local leaders or have any personal contacts with them.
18. In July 2007, the nationwide farmers' movement in Vietnam "(Dan Oan)" (victims of injustice) organised a giant protest in the Ho Chi Minh City and our organisation offered support.
19. One of my uncles "[Mr A]" came to the city to attend that protest. He was my mother's brother-in-law. I participated in the protest with my uncle.
20. The day after the protest, police visited my home and interrogated me and my family. They warned my mother not to allow me to attend the protests.
21. In March 2008, I decided to take part in another protest with my uncle [Mr A] at [Village 1]. That was a land right protest rights. The protesters were demanding [a number of] hectares of land confiscated by the government. My uncle [Mr A]'s land was also taken by the government.
22. In the first week of August 2008, I was taken to the local police station. The police showed me handcuffs and forced me to sign a written confession about my past "anti-government" activities. In Vietnam, protesting is considered as an "anti-government" act. I realised that the authorities have been monitoring my activities.
23. The police had information about my involvement in [Association 1]. They accused me of being a traitor.
24. I was threatened that I would not be allowed to eat or return home if I did not sign the statement of confession. My mother begged for my release and they threatened that if I did not sign the statement both my mother and I would be put in jail. I then signed the confession.
25. In late 2008, my house was attacked by thugs. My mother complained to the police but it did not take any action to find the people who were involved in the attack. It is a way of warning people not to act against the government.
26. Since then I refrained from doing any political activities. My mother decided to send me to Australia for my safety.
27. After I came to Australia, I felt very safe. I personally experienced the many freedoms enjoyed by the people living in Australia. My passion for politics grew with my enjoyment and experience of democracy in Australia.
28. I joined a group of Vietnamese students at the University to discuss politics. In May 2014, I took part in anti-communist protests in [City 1].
29. During that protest I held a banner.
30. I also joined online protests by signing online petitions. I signed [online] [petitions].
31. Since then my mother informed me that the police visited my home asking about my activities in Australia.
32. My mother was told that I have broken my undertaking not to engage in any political activities and I will be punished upon return.
33. I have significant fears of return.
Reasons for refusal
34. My visa application was refused due to lack of credibility of my claim. The delegate did not accept my claim as credible as I failed to substantiate my claim. It also considered my delay in applying for protection in assessing the credibility.
Credibility issues
35. The delegate had concerns about my knowledge of [Association 1]. Therefore, the delegate refused to accept my claim that I have participated in its activities.
36. The delegate found that the responses in relation to my PV interview in relation to my role and involvement in the land protests were vague and obscure.
37. Therefore, the delegate dismissed all my claims in relation to the land right protests.
38. It also decided that my evidence was also lacked "material detail"
39. The delegate also raised issues about my legal departure.
40. The delegate had raised issues about my renewal of passport in 2014. It said that the authorities would not have renewed my passport if I had a profile as an activist.
My response
41. It was a culture within [Association 1] to keep the leaders' details secret. Ordinary members were not given the names of the leaders. We were only allowed to contact leaders to organise meetings and protests and had no personal contacts with them.
42. At the protection interview I was very nervous. After my police detention, I was very fearful of authorities. I felt as if I was being interrogated by the police.
43. The delegate had concerns about my legal departure. My mother organised my student visa and at the airport she paid bribes to the officials to avoid scrutiny. At the time of departure, I was not engaged in any political activities.
44. I lost my passport in 2014 and then I applied for a new passport. I had no difficulty in obtaining that as it was issued [in] Australia.
45. I arrived in Australia as a student and my aim was to complete my studies and obtain a skilled visa to permanently stay in Australia. I was not aware of protection visa process.
46. However, when my visa expired, I decided to explore the avenues to stay in Australia. Protection visa was the only avenue available.
47. I escape from Vietnam as I was living in a fearful environment. My mother wanted to save me from authorities. I was being investigated and monitored for my involvement in [Association 1].
48. Since arrival, I had no intention of returning to Vietnam. I arrived in 2009 and never returned. I fear that I would be arrested and interrogated upon return. In the past, activists have been arrested for leaving the country while under investigation. Also they are likely to arrest me for breaching vague laws such as 'abusing democratic freedoms" in Vietnamese Criminal Code.
49. I fear that I would be imprisoned upon return.
50. Therefore, I respectfully request the Tribunal to consider my circumstances and the genuineness of my claim for protection.

The applicant did not provide any further documents at the Tribunal hearing and he told the Tribunal that his application for protection was prepared by his representative on his instructions (in Vietnamese) which were true and correct. He stated that he is satisfied that his visa application is accurate and complete. He stated that he has not lodged any documents with the Department or that Tribunal that are false or misleading or incomplete and he has not had any change in circumstances since he completed his protection visa application.
The applicant told the Tribunal that his address in Ho Chi Minh City prior to coming to Australia was his family home and this is where his grandmother and mother lived before he was born. He said his family had the property for a very long time. The applicant also told the Tribunal that his father passed away when he was [age] year old but none of his family spoke about his father. He said that he did not remember if his mother remarried but he had a step-father until he was [age] years old who [worked].
The Tribunal asked the applicant about his extended family. The applicant said that in Vietnam, he lived with his grandmother, mother and step-sister. He said that his mother had [a number of] siblings and [a number] of them are still living in Vietnam. The applicant said that he has an aunt living in Australia and those that live in Vietnam include one in Ca Mau and another in Binh Duong. He initially said that he only knew of these two relatives in Vietnam because he does not contact the others much. He also said he has an uncle in Ca Mau who had lived there for the past [number of] years since he came back from [overseas]. The applicant then said that he had [other] uncles in Vietnam in ’[Village 1]’ [and] ‘grand uncles’, one living in Ca Mau.
The Tribunal asked the applicant about his education and employment. The applicant said that he finished [school] in June or August 2008 and he did not work in Vietnam prior to travelling to Australia. He said that he has been supporting himself in Australia by working in [various places].
The applicant told the Tribunal that he came to Australia because at that time, he was in fear that authorities would get him back for an interview so his mother helped him escape the country. The applicant said that he was aware that his student visa was a temporary visa and his ‘grand uncle’ assisted him to make his student visa application. He said he thought he submitted his student visa application between ‘a few months’ and six months prior to his arrival in Australia and he cannot remember when he applied for his passport but it was around 2009. The applicant did not have any trouble obtaining his passport which needed local permissions and the results of his final exams and English tests were required to make his student visa application.
The applicant said he planned to study ‘[a course]’ while in Australia and while he did not complete the qualification, he only has around [a number of] subjects to go but he stopped attending in 2014. The Tribunal noted that while the applicant said he did not intend on coming to Australia to study, he actually did quite a lot of study. The applicant agreed. The Tribunal asked the applicant why he did so much study if he did not intend coming to Australia for that purpose. The applicant said that he was told that if he did study then he could apply for a permanent visa such as a skilled visa. The applicant said he was advised of this in through his university and in 2010 through a migration agency for overseas students. The applicant said that this migration agency was a different type of agency and he asked them what type of course to apply for in order to get a visa to stay in Australia. The Tribunal asked the applicant if he explained to the agency why he wanted to stay in Australia. The applicant said that because it was private and confidential, he did not tell the agency. He also said that this agency just provided advice on things to do with study and what course or university to go to. The applicant said he spoke to this agency after he arrived in Australia and after he completed his English course. The Tribunal asked the applicant why he did not ask this agency about all his permanent visa options of if they could refer him to someone who could advise him on his circumstances. The applicant said that at that time, he did not know about protection visas and he only knew that if he completed his course then he could apply for a visa to stay.
The Tribunal noted that the applicant’s student visa expired in March 2014 but he did not apply for a protection visa until March 2015 during which he was unlawful for one year. The applicant agreed. The Tribunal asked the applicant what he was doing for this year. The applicant said that he moved from one property to another. The Tribunal noted that the period was one year and that moving house would not have taken all year and asked the applicant again what he was doing during this year. The applicant said he worked part-time.
The Tribunal noted that the applicant claimed while he used a student visa as a means to get to Australia, and he knew this visa was temporary, his intention in coming to Australia was due to a fear for his life. The Tribunal also noted that while the applicant did not intend on coming to Australia to study, he actually completed a significant amount of study and therefore, there appears to be somewhat of a discrepancy in what he intended to do in coming to Australia and what he actually did and asked the applicant if he could explain this discrepancy. The applicant said that it was because he did not know about protection visas at the time and it was only later that he found out.
The Tribunal asked the applicant when and how he found out about protection visas. The applicant said he got information through friends and his [aunty] who he was living with in Australia. The applicant told the Tribunal that he came to stay with his aunty when he arrived in Australia and he did not know under what circumstances his aunty is in Australia. The Tribunal asked the applicant again when he found out about protection visas. The applicant said that when he moved out of his aunt’s place in 2015 and he told her everything. The Tribunal asked the applicant if his mother told his aunt why she was sending him to her. The applicant said his mother expected his aunty to look after him. The Tribunal asked the applicant again if his mother told his aunty why she wanted her to look after him. The applicant said his mother said that he left to go overseas to study.
The Tribunal noted that it was having difficulty understanding the applicant’s evidence given that he had told the Tribunal that his mother helped him escape Vietnam; he left in fear of his life; he was sent to his aunt in Australia who could help him but his aunt was not told why her nephew was coming to stay with her; his visa expired in March 2014 but the applicant only became aware of protection visas in 2015. The Tribunal asked the applicant if he could explain, in particular, why he and his mother would not tell his aunt about the problem given she would be able to assist him in Australia to get advice on his options for staying in Australia permanently. The applicant said that at first, he did not tell his aunt about all the complications in Vietnam and he kept it secret. The Tribunal asked the applicant why he would do that. The applicant said that he thought that if he completed his study then he can apply for a permanent visa and he didn’t need a protection visa.
The Tribunal asked the applicant why he applied for a protection visa and what he fears in returning to Vietnam. The applicant said that he worries and fears that if he goes back to Vietnam, authorities might get him because in the past he participated in activities against the government.
The Tribunal noted that the applicant claims that he joined [Association 1] and asked the applicant about his membership and why he joined the Association. The applicant said that he joined the Association through his uncle that lives in ‘[Village 1]’ when he was about [age] years old (2006). The Tribunal asked the applicant why he was so politically-minded at the age of [age]. The applicant said that the organisation is to help local residents and his uncle had his land acquired in 2005 without compensation. The applicant then said that his uncle received some compensation but not enough. The Tribunal noted that country information outlines that all land in Vietnam is owned by the state and made available under lease arrangements and that it was aware that land could be acquired again by the state. The applicant said that when land is compulsorily acquired, residents receive very little compensation in comparison to the real value.
The Tribunal asked the applicant again why he was so politically-minded at the age of [age] or [age] that made he want to join this organisation. The applicant said that at the time, there was a lot of news and media to know that a lot of people had land compulsorily acquired. The Tribunal asked the applicant why he was so interested in this issue when he lived in Ho Chi Minh City and he was not a “landholder”. The applicant said that it was because his uncle was a victim and also residents work hard for a living and losing land makes it hard for life and he also felt that the compensation was not fair.
The Tribunal asked the applicant why he joined this particular organisation. The applicant said that he thought that authorities might give more compensation to residents and they could change land policy. The Tribunal asked the applicant what made him think this organisation could achieve this. The applicant said there were a lot of victims and they joined the organisation and they want to stand up and raise their voice to the authorities.
The Tribunal asked the applicant what he had to do to join this organisation. The applicant said that he went with his uncle to join and it was a group of people that shared feelings and he would assist them to do activities and do protests. The Tribunal asked the applicant if he undertook any actual joining process or if he received any acknowledgement that he was part of the organisation. The applicant said that to join, he didn’t need to do any paperwork because it involved lots of poor people and monks. The Tribunal asked the applicant, if he didn’t have to do anything to join, how he knew he was a member. The applicant said that his uncle was a victim and they went there and they knew him. The Tribunal confirmed that the applicant did not have to do anything to actually join the organisation; he did not pay a membership fee and he just had to turn up. The applicant said that this organisation is a group of people and victims and he didn’t do any paperwork.
The Tribunal asked the applicant how many members of this organisation there were in Ho Chi Minh City. The applicant said there were a lot of people in the group in a lot of locations. The Tribunal asked the applicant again if he knew how many members or ‘victims’ there were in Ho Chi Minh City. The applicant said that he just knew that most of them were poor people and they came from different locations.
The Tribunal asked the applicant how the organisation worked and what happened when he started turning up. The applicant said that at night time, the members gathered and discussed about the victims and about unfair policy. The Tribunal asked the applicant if he did not have to fill out any paperwork, how he received information about the secret meetings. The applicant said that he usually just followed his uncle and that meetings happened on the weekend and they would talk about news and affairs. The Tribunal asked the applicant where the meetings were held. The applicant said that small discussions would meet on the street and sometimes meetings would happen in the park in Ho Chi Minh City. He said that the meetings happened at night because people worked during the day.
The Tribunal asked the applicant how these meetings involved his uncle or how he went along with his uncle when he had said that his uncle lived in ‘[Village 1]’. The applicant said that he heard his uncle’s stories through his mother. The Tribunal asked the applicant again how he went along to this organisation with his uncle when he was living in ‘[Village 1]’. The applicant said that after he visited his uncle and he knew that he had contact with victims who lost land and in Ho Chi Minh City, there were people in the community assisting poor people. The Tribunal asked the applicant if he went to these secret meetings alone at night in Ho Chi Minh City as [an age or age] year old. The applicant said no, at that time his uncle moved to Ho Chi Minh City. The applicant then said that his uncle came to visit with a few victims from ‘[Village 1]’. The Tribunal noted that it found the applicant’s evidence regarding his joining this organisation and attending meetings with his uncle confusing and asked the applicant if he could clarify his evidence. The applicant said that at the time, he visited his uncle in ‘[Village 1]’ and he knew his uncle had contact with victims and they knew this organisation in Ho Chi Minh City and they stayed in town.
The Tribunal asked the applicant about the association including its philosophy, what it stood for and its aims. The applicant said that they protect poor people who lost land and want all residents to be treated fairly. The applicant did not know when the association began but he said that it still exists and it is secret to government. The applicant said that the aim of the association is to organise protests so that the government can change policy or pay compensation more fairly when acquiring land. The Tribunal asked the applicant if he was aware of the issues of being involved in such an organisation. The applicant said that when he joined, he did not know that the activities were against the government but he thought that the protest activity was to get government to look at the policies and treatment of poor people. The Tribunal noted that on the one hand, the applicant was very politically-minded and wanted to join this organisation but on the other hand, he did not know that the activities of this organisation might be considered anti-government. The applicant said that was right. The Tribunal asked the applicant if his uncle explained to him what this organisation was about. The applicant said that he saw that the victims were very poor so that’s why he wanted to join and he thinks land and compensation policy needs to change. The applicant also said that he thought that the activities were to get opinions and ideas and not activities against government because the protest activity was to raise voices, not to destroy the government.
The Tribunal asked the applicant about the giant protest he attended in Ho Chi Minh City. The applicant told the Tribunal that he found out about the protest at the night meetings where an announcement is made about the day, time and location of the next protest. At the protest his role was to attend, hold a sign and “say it loud” but he did not organise the protest. While he could not remember all the words on the sign, it referred to the need to fairly compensate residents and also human rights. He said there were over one thousand people and the police came and observed after about one hour. He said that traffic police controlled the traffic. People participated for a few hours and then the police required people to go back home. The applicant said that the police did not speak to him because he was a bit far away and he was not arrested. He said that some people had an argument with the police and they were arrested.
The Tribunal asked the applicant where this protest was held. The applicant said that it was on the street in front of a “centre”. He said he could not remember exactly but it was at one of the authority “centres”. The Tribunal asked the applicant how the police knew who he was or where he lived if they didn’t speak to him at the protest. The applicant said that he thought that after the police asked some people to go back home, they followed some people home or they recognised him or the authorities saw him returning from the protest. The Tribunal asked the applicant if he thought he might have been followed when there were more than one thousand people at the protest. The applicant said he was not sure but later on, the police said they saw him at the protest and they asked him to explain why he joined. The applicant said he was not arrested but the police warned him not to do it again because it was actually against the government.
The Tribunal asked the applicant if he knew then that what he was doing was against the government, why did he attend another protest in his uncle’s village and why did he wait such a long time to participate in any further activity. The applicant said that he thought he needed to stand up and raise a voice because if he didn’t then he would have to live an unfair life. The applicant said that he thought these activities would help poor people and the authorities needed to do something to help.
The Tribunal asked the applicant about the protest in his uncle’s village. The applicant said that the police attended the protest and there were one to two hundred people there. The applicant said that the police spoke to him and asked him why he was there and he gave them his address in Ho Chi Minh City but he was not arrested. The Tribunal noted that the applicant said this protest occurred in March 2008 but that authorities did not come to his home to interrogate him until July 2008 and asked the applicant if he knew why there was such a gap in time between the protest and his interrogation if he had given his details at the protest. The applicant said he did not know why.
The Tribunal asked the applicant about his interrogation. The applicant said that they asked him why he joined and participated when it was not his business. The applicant said that he asked the authorities why residents did not receive fair compensation and the police got very angry with him and said that he was against the government. He said that they asked him a few questions and then took him to the police station where they threatened him and forced him to plead guilty to being against the government. The applicant said he signed the confession although he didn’t want to. He was then kept in jail for one day and they told his mother not to let him do it again. The applicant said that before he arrived in Australia, he was not arrested at any other time and he did not participate in any other activity because he was scared.
The Tribunal asked the applicant about the claim that his house had been attacked. The applicant said that his house was attacked and when he came back, everything was messy he thought they might find evidence. The applicant also said that after he arrived in Australia, there were no more attacks but police had come to his home two or three times asking his mother where he was and he thinks they want to arrest and investigate him. He said he thought the police visited his mother a few years after he arrived in Australia but he could not remember. He said he thought the last time the police visited his mother was around 2014 because there was a big event and China attacked Vietnam and took petrol from Vietnam. The Tribunal asked the applicant why he thought that event might have anything to do with him. The applicant said that it was because he attended a protest in [City 1] about China’s attack on the Vietnam sea and taking petrol.
The Tribunal asked the applicant if attending meetings and protests was all his activity in Vietnam. The applicant said yes. The Tribunal noted that the applicant’s statutory declaration outlines his activity as including organising meetings and public protests and delivering leaflets and that his representative’s submission also states that the applicant assisted with advertising for protests and asked the applicant if there was any reason he had not mentioned these other activities to the Tribunal. The applicant said that these activities are not really a part of organising protests or meetings, they are just a small road to helping. He also said he was nervous.

The Tribunal asked the applicant about his attendance at the protest in [City 1]. The applicant said that he knew about the protest in the local newspaper because it was a big issue in the country because China attacked the sea and the government did not do anything about it. The applicant said he did not participate in any activity in Australia prior to this protest and he read that people participated in the protest to raise voices for Vietnam to stand up. He does not have any evidence of his participation at this protest.
The Tribunal asked the applicant about his signing online protests. The applicant said that he signed the online [petitions] about the same time he attended the protest in [City 1]. The applicant said that he does not have any paperwork or evidence of his signing these petitions but he just wanted to stand up and did not think to collect evidence. The applicant said that he went through a website to sign the petition and he just had to sign up to collect the signatures and he thought that one of the websites asked for help from the White House. The applicant told the Tribunal that while he did tell the Department about his attendance at the protest in [City 1] during his interview, he did not mention these petitions because there were a lot of things happening at the interview and he was nervous. He also said that the petitions did not happen on the same day. The Tribunal noted that it may have some doubts about the applicant’s explanation given all this activity occurred sometime before the applicant lodged a protection visa application and had an interview with the Department. The applicant said that he still did not know about protection visas at that time. The Tribunal asked the applicant if he has participated in any other activity in Australia since this protest and online petitions. The applicant said he did not but he did follow the news.
The Tribunal noted that it was having difficulty in understanding the applicant’s evidence that he arrived in Australia in 2009 but did not participate in any political activity before 2014 and nothing since. The Tribunal noted that the Tribunal might conclude that the applicant’s claim to have participated in this activity in Australia might be for the purposes of strengthening his protection visa application and invited the applicant to comment. The applicant said that the events happened in 2014 and lots of people thought that war might happen.
The Tribunal noted that it could not find any information about the protest the applicant described in [City 1] and all the activity the applicant described in Australia might be interpreted as activity that is pro-Vietnam and anti-China. The Tribunal asked the applicant if he could explain how his activities in Australia might be considered anti-government. The applicant said that on the news there was a lot about Vietnam not doing anything against China taking over this land and the government did nothing so he wanted to participate in [City 1] and to avoid war. The applicant said that the aim of the protest was to say that China took islands and oil from Vietnam and to ask China to return them. The applicant said that the ocean, oil and islands have belonged to Vietnam for one hundred years and residents that live in the area had to move because China put an army force there and a few Vietnamese boats were attacked by China and this is why he participated in the protest.
The Tribunal noted that the applicant applied for and was issued a new passport in [2014] and asked the applicant why he feared returning to Vietnam when authorities granted him a new passport. The applicant said that he applied for a passport a few times. The Tribunal noted that the applicant was claiming that he feared returning to Vietnam due to his activities (including those in Australia) and that authorities have labelled him an activist but he applied for and was granted a new passport. The Tribunal put to the applicant that this might suggest that his willingness to approach Vietnamese authorities to obtain a new passport means he does not have a fear of Vietnamese authorities and the fact that his passport was granted might also suggest that Vietnamese authorities are not concerned about him or his activities. The applicant said that he did not know much about this but that his identification had to be his passport in a foreign country.
The Tribunal asked the applicant when he decided he needed to leave Vietnam. The applicant said that he decided he needed to leave after his home was attacked in late 2008. The Tribunal noted that it was not until November 2009 before he arrived in Australia and asked the applicant why it was a year before he left Vietnam once he decided he needed to leave. The applicant said that he needed time to prepare the paperwork for his passport and time for the school in Australia to approve his application as an overseas student. The Tribunal noted that the applicant had told the Tribunal that he did not apply for his student visa until a few months before he left Vietnam so it was still sometime between his student visa application and when he decided to leave Vietnam and this might suggest that he was not in fear of his life. The applicant said that before he left Vietnam, he only knew that it was a student visa to come to Australia and his mother was the one who managed everything and organised the English tests, school approval and passport.
The applicant told the Tribunal that there are no other reasons he fears returning to Vietnam and that he had told the Tribunal everything he wanted to say.
The Tribunal asked the applicant’s representative if there was any submission he would like to make on his client’s behalf. The applicant’s representative told the Tribunal that his submission related to the concerns raised by the Tribunal regarding the applicant’s thoughts and actions appearing to support the government’s position. He stated that the background is that Vietnam has been divided into two and in 1975 it unified, north and south together and a lot of people fled Vietnam to Australia and they carry a lot of anger towards the current regime so the protest is to say that the current Vietnamese regime works with the Chinese government despite the people’s wishes or concerns about their land. He said the current government works with the people, with the Chinese government so the applicant’s actions and concerns are actually not really supporting the Vietnamese government approach. The applicant’s representative said that he thought that clarified the Tribunal’s concern as to why the applicant’s actions appear to be supporting the Vietnamese government.
The Tribunal noted that it might have some concerns about the extent of the applicant’s political involvement. For example, the Tribunal noted that the applicant had spoken very generally about the association he was involved with in Vietnam, the answers to a number of the Tribunal’s questions appeared to be evasive and the evidence in relation to the applicant’s activities and what he believed he was participating in was confusing. The Tribunal also noted that the applicant suggested he was very politically-minded from a very young age but that he did not participate in any political activity from his arrival in Australia until 2014 and then nothing since. The Tribunal noted that this might suggest that his claims are not genuine and it could cause the Tribunal to doubt the credibility of these claims and invited the applicant to comment. The applicant said that in Australia, he needed to spend a lot of time studying because English is his second language and he also had to spend time working to support himself. He followed the news about Vietnam and all over the world. He said he needed to do more to concentrate on his studies and sometimes he talked to friends and discussed opinions. In relation to the online petitions, the applicant said that he read news that America would bring army forces.
The Tribunal noted that the applicant claims to have been labelled an activist in Vietnam and be in fear of his life but it was around twelve months before he left Vietnam and in order to do so, he applied for and was granted a passport in Vietnam. He also told the Tribunal that he had no problems in obtaining his passport. The Tribunal noted that this might suggest that the applicant was not in fear of his life in relation to the time he took to leave Vietnam and that authorities in Vietnam are not concerned about the applicant by granting his passport. The Tribunal also put to the applicant that he claims to have come to Australia in fear of his life but upon arrival, he studied. He also told the Tribunal that he came to Australia to stay with his aunt and that he was in contact with a migration agency which could both have assisted his ability to stay in Australia permanently. However, it was more than five years before the applicant applied for a protection visa, including one year of being unlawful. He also applied for and was granted another passport through the Vietnamese Embassy while in Australia. The Tribunal also noted the applicant was educated and that delays in applying for protection can cause the Tribunal to doubt the credibility of the claims being made and invited the applicant to comment.
The applicant said that he did not know about protection visas and his mother wanted him to leave the country and that is why she applied for the student visa. He said that in order to apply for the visa and passport to come to Australia they needed time. After he arrived in Australia and completed his English course, he said he did speak to an agency and asked about a skilled visa but he still did not know about protection visas.
The Tribunal asked the applicant’s representative if he had any further submissions. The applicant’s representative did not. The Tribunal asked the applicant if he would like any time to speak with his representative before the close of the hearing. The applicant said he would like some time and the Tribunal offered the applicant a short adjournment. The applicant then said that he did not need an adjournment.
The Tribunal asked the applicant if there was anything else he wanted to make the Tribunal aware of. The applicant said that when he applied for the [passport] he applied a few times. The applicant said his first application for a new passport was postponed and they asked him to wait so he did but there was no response so he reapplied. The applicant said he could not remember exactly but it might have been around 2012 or 2011. The applicant told the Tribunal that the agency at the university advised him to go to a website and they said he needed to get a police report and a money order for payment to obtain a passport. The applicant said that he went to a police station in [City 1] to report that he lost his passport and obtained a ‘report’ or made a statutory declaration. The applicant said he could not explain why his initial applications were postponed and he kept calling but was told that he might need to wait six or twelve months. The applicant then said that the first two times, his application was not successful but he was not given a reason as to why they were unsuccessful and he did not know why they may have been. The Tribunal noted that it might have difficulty in concluding that there is anything untoward about the possibility that the applicant made multiple passport applications given he was still granted a passport in [in] 2014, after the political activity he claims to have participated in while in Australia and invited the applicant to comment. The applicant said that he had no comment.
Assessment
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is a Vietnamese national. Vietnam is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Vietnam, his reasons for leaving Vietnam, his activities in Australia and why he fears returning to Vietnam. The Tribunal found aspects of his evidence to be lacking in detail, lacking in credibility, contradictory and unconvincing. The Tribunal is of the view that he is not a reliable or credible witness for the reasons that follow.
Membership of [Association 1]
The Tribunal does not accept that the applicant was or is a member of [Association 1] or otherwise involved in any anti-government activities in Vietnam.
The Tribunal discussed the applicant’s membership of this organisation with him in detail, including the origins of his political motivations, how he joined this organisation, why he picked this organisation and what it stood for and the activities he participated in. The applicant’s answers to the Tribunal’s questions were superficial, unconvincing, at times, evasive and did not accord with the depth or detail of his written submissions.
For example, the Tribunal asked the applicant a number of times why he was so politically-minded at the age of [age or age] when he claims to have joined the [Association 1]. Each time, the applicant spoke very generally about the compulsory acquisition of land and then, noting that he lived in Ho Chi Minh City, he referred to an uncle that had been a victim. Similarly, when the Tribunal asked the applicant why he joined [Association 1], he gave a general answer regarding the organisation being to help local residents; authorities giving more compensation to residents; and to change land policy.
When the Tribunal discussed how the applicant joined the Association and how he participated in their activities, the applicant’s evidence was very confused and included that he did not fill out any paperwork, he just went along with his uncle. However when the Tribunal noted that he had said his uncle lived in the village of ‘[Village 1]’, the applicant said that his uncle moved to Ho Chi Minh City and then said that he came to visit with a few victims from ‘[Village 1]’. The applicant did not provide any clarity regarding how he joined and participated in the Association with his uncle as he had claimed. It is also unclear to the Tribunal how the applicant or any ‘members’ of the Association were aware of any of the activities of the organisation when no paperwork was completed or details provided in relation to communication methods.
The Tribunal talked at length with the applicant about his activities with the Association and he confirmed to the Tribunal that the only activities he participated in were attending secret meetings and attending protests. However, the applicant did not mention any of the other activity he had claimed he participated in as set out in his statutory declaration including organising meetings and public protests and delivering leaflets or the activity suggested by his representative, that the applicant assisted with advertising for protests. The applicant’s explanation for this inconsistency that “these activities are not really a part of organising protests or meetings, they are just a small road to helping” provides no clarity for this inconsistency given it contradicts the activity the applicant was claiming to have been involved with (that is, the organisation of meetings and protests). The Tribunal is of the view that if the applicant’s activity with the Association was to the extent of organising meetings and protests, that he would have told the Tribunal about this when his involvement was discussed in detail and he was asked specifically whether he was involved in any activity other than attending meetings and protests.
In his statutory declarations, the applicant refers to his political views being formed due to the hardships he experienced as a child and realising that “these problems were created by the communist regime”. The applicant said he “began to dislike the communist regime, its harsh punishment of citizens, prohibitions and violations of human rights” and that his mother had told him stories of his uncles and their fellow villagers that had lost their land rights, their protests and the punishments they received. He also said that he personally experienced what his relatives went through during school vacations, referring to “the punishments they received for protesting against the corrupt government officials” and that [his] uncles had been imprisoned. The applicant also said that from a very young age, he was able to understand that many social and economic problems were caused by the corrupt communist system and that when he discussed these issues with his school friends, their “desire to change regime was real” and then he joined [Association 1] because he was “desperate to do something to change the situation in villages”.
The Tribunal is of the view that there is a significant difference between the articulation of the applicant’s formation of his political views and therefore his joining of [Association 1] and his associated activities in his written statements compared to his ability to talk about those views with any substance to the Tribunal. The Tribunal notes that the applicant’s statutory declaration dated [in] October 2016 responding to the delegate’s concerns regarding his inability to convincingly talk about [Association 1] and his involvement was explained, amongst other things, by the applicant being nervous and having a fear of authority.
The Tribunal also notes that the applicant’s explanation for the concerns raised by the Tribunal regarding the inconsistency in the applicant’s evidence about the activities he was involved with for [Association 1] also included that he was nervous. While the Tribunal understands the applicant may have been nervous on both occasions, the Tribunal is of the view that the applicant’s inability to speak convincingly or consistently about the political views he claims to hold or his membership and involvement with [Association 1] is because he is not speaking from personal experience.
For the sake of completeness, the Tribunal also notes that the applicant claimed that his house was attacked by thugs in late 2008 and when his mother complained to the police, nothing was done because this was a way of warning people not to act against the government. When the Tribunal discussed this claim with the applicant, he was very general in his response and told the Tribunal that “his house was attacked and when he came back, everything was messy and he thought they might find evidence”. It is apparent to the Tribunal that the applicant connects this claim to his claim of participation in anti-government activity in Vietnam. Given the Tribunal does not accept that the applicant was involved in any anti-government activities in Vietnam, and given the vagueness and lack of detail provided by the applicant in relation to this claim, it follows that the Tribunal does not accept that the applicant’s house was attacked due to his anti-government activity (or for any other reason) or that the police refused to act on a complaint by his mother about an attack on their house due to the applicant’s anti-government activity.
Not credible evidence
The Tribunal notes that at various times throughout the Tribunal hearing, the applicant suggested that he was unaware that his membership of and participation in the activities of [Association 1] was “anti-government”. However, in the Tribunal’s view, such statements contradict the claims the applicant makes in his statutory declaration dated [in] March 2015 that he “began to dislike the communist regime, its harsh punishment of citizens, prohibitions and violations of human rights” and that his mother had told him stories of his uncles and their fellow villagers that had lost their land rights, their protests and the punishments they received. The applicant states that these are the reasons behind him and his friends wanting “regime change”.

The Tribunal found the applicant’s variation in his apparent understanding of his actions further confused and undermined his evidence. Particularly when, upon being ‘interrogated’ by the police about his joining and participation in the activities of [Association 1], he said he “asked the authorities why residents did not receive fair compensation”. This statement by the applicant does not suggest someone who was naive and unaware but rather, someone seeking to antagonise the police.
Anti-government activity in Australia and online
The Tribunal does not accept that the applicant has participated in any anti-government activity in Australia or online.
The applicant claims to have participated in an anti-government protest in [City 1] in May 2014 where he held a banner. The applicant also claimed to have signed online [petitions]. The Tribunal notes that the applicant also claims in his statutory declaration dated [in] October 2016 to have joined a group of Vietnamese students at the University to discuss politics but he did not raise this activity with the Tribunal.
The Tribunal was unable to find any independent evidence of the protest the applicant claims to have participated in [City 1] in May 2014 or any evidence of the claimed online petitions. In addition, the applicant did not advise the Department during his interview of his signing of online petitions and he has no evidence of his participation in the protest in [City 1] or the online petitions. The Tribunal notes that the applicant’s explanation for not advising the Department of his online petition activity was because “there was a lot going on and he was nervous”. While this is possible, the Tribunal has deep reservations that the applicant would not raise his online activity with the Department when he told the Tribunal that the [City 1] protest and his online activity were around the same time and related to the same issue. Similarly, when considered in the context of the lack of any independent evidence of the claimed activity, the Tribunal is also of the view that the applicant’s claims regarding his activity in Australia are lacking in credibility.
The Tribunal also finds that the applicant’s apparent lack of political involvement after leaving Vietnam is inconsistent with someone who claims to have had deeply held political views from a very young age. The applicant arrived in Australia in November 2009 and claims that his first participation in anti-government activity in Australia was more than four years after his arrival in May 2014. The applicant stated that he was not scared to be involved in these activities in Australia because he does not wish to return to Vietnam but equally, he has not been involved in any activity since that time which is more than three years. The applicant also claimed that the delay in his political participation was because he was concentrating on his studies. However, the Tribunal is not convinced that someone with such deeply-held political views and who had ‘escaped’ Vietnam due to those views and previous activity would then undertake no activity when he was able to do so due to a focus on his studies.
In addition, the Tribunal is not satisfied that the protest in [City 1], referred to by the applicant as being related to China’s attack on the Vietnam ocean, or the two online [petitions] is inherently anti-government. The Tribunal notes that the applicant claimed that he was protesting because the Vietnamese government “did not do anything about it” and the applicant’s representative made a submission that “the protest is to say that the current Vietnamese regime works with the Chinese government despite the people’s wishes or concerns about their land” and therefore, the applicant’s actions and concerns are actually not really supporting the Vietnamese government approach.
However, the applicant also said that “the aim of the protest was to say that China took islands and oil from Vietnam and to ask China to return them” implying that the protest was against China. Other that the applicant and his representative’s assertions, no evidence has been provided to support a conclusion that this issue, or any activities related to this issue in Australia, is against the Vietnamese government.[1]
[1] Reports suggest that relations between China and Vietnam significantly ‘cooled’ in 2014 after China moved its oil rig into Vietnam’s Exclusive Economic Zone and that Vietnamese authorities have “allowed” anti-China protests to occur in Hanoi in order to “send a message to Beijing”. See for example, Huffington Post, Helen Clark, Vietnam Careful, Not Jubilant After South China Sea Ruling Against China,
Therefore, the Tribunal does not accept that the applicant has participated in any anti-government activity in Australia or online due to the lack of evidence; the applicant’s claimed activity in Australia being some four years after his arrival in Australia and nothing since being contradictory to his claims of deeply-held political views since his childhood; and the Tribunal not being satisfied that any of the claimed activity in Australia or online is inherently against the Vietnamese government. The Tribunal finds that the applicant’s claims to have been involved with anti-government activities in Australia and online were made for the purposes of strengthening his protection visa application.
Delay in applying for protection
The applicant did not apply for a protection visa until more than five years after his arrival in Australia, including a period of one year where he was unlawful. The applicant claimed to have left Vietnam in fear of his life with the assistance of his mother; that he has been blacklisted as an activist and that the police have visited his home in Vietnam since he has been in Australia (particularly following his claimed political activity in Australia in 2014). The applicant also told the Tribunal he was aware his student visa was a temporary visa and shortly after his arrival in Australia, he was talking to a migration agency about what courses he should study in order to obtain a permanent visa. In addition, the applicant told the Tribunal that his mother sent him to Australia to live with his aunt.
If the applicant genuinely held the fears claimed and was being sent to live with his aunt in Australia, the Tribunal does not accept that the applicant and his mother would not have discussed this with the applicant’s aunt and requested that she assist her nephew. Similarly, if the applicant genuinely held the fears claimed and was seemingly so aware of the need to obtain a permanent visa, the Tribunal would have expected him to have lodged a protection visa application, or to have at least made inquiries with the Department or the migration agency he referred to shortly after his arrival in Australia about his options for staying in Australia permanently and well before the expiry of his student visa. The Tribunal also notes that the applicant is educated and stated on his protection visa application that he can speak, read and write English. On this basis, the Tribunal does not accept the applicant’s explanation that he was unaware or unable to access information regarding protection visas.
Contributing to the Tribunal’s findings is the fact that the applicant sought from Vietnamese authorities in Australia, and was granted in [2014], the reissuing of his passport. In particular, the Tribunal notes that this was some five months after the anti-government activity the applicant claims to have participated in Australia. The Tribunal notes that the applicant suggested that he lodged his passport application a number of times. However, the applicant’s overall evidence on this matter was vague and confusing. On the one hand, the applicant suggested he made multiple applications for his passport. On the other hand, he suggested that the initial application was postponed or would take some considerable amount of time to process. He also suggested that two of his applications were unsuccessful. The applicant told the Tribunal that he did not receive any reason for the postponement, delay in his application or unsuccessful application or applications. While the Tribunal has considerable doubts about the applicant’s evidence regarding his passport applications, as the Tribunal put to the applicant, the fact that his passport was reissued, after he claimed to have participated in anti-government activity in Australia suggests that nothing untoward can be inferred by any issues he may have had with any earlier applications he may have made for his passport to be reissued.
When these factors are considered together, the Tribunal finds that the applicant’s claims in relation to his anti-government activity to be completely lacking in credibility. Accordingly, the Tribunal finds that the applicant was not involved in any anti-government activity in Vietnam or Australia.
It follows that the Tribunal does not accept that the applicant was arrested, interrogated, threatened or in any way harmed by the police due to any anti-government activities in Vietnam; that the applicant is of interest to the authorities as a result of any anti-government activity; or that he will express an anti-government opinion or participate in anti-government activities if he returns to Vietnam.
Cumulative assessment
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds his fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Considering the applicant’s individual circumstances and country information on a cumulative basis, 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 that there is a real risk he will suffer significant harm.
CONCLUSIONS
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Saxon Rice
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1687

13 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice