1513645 (Refugee)

[2017] AATA 1523

1513645 (Refugee) [2017] AATA 1523 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513645

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Saxon Rice

DATE:4 September 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 04 September 2017 at 12:23pm

CATCHWORDS

Refugee – Protection visa – Vietnam – Political opinion – Opposition to Vietnamese Government – Political activist – Fear of arrest – Social Democratic Party – Land confiscation protests – Delay in applying for protection

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 424AA, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] May 2015.

3. The applicant appeared before the Tribunal on 1 November 2016 to give evidence and present arguments. Before a decision could be finalised following that hearing, the matter was reconstituted to another member. Consequently, the applicant appeared again before the Tribunal on 22 August 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 is represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

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, 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.

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 because the person is a refugee.

7. 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).

8. 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.

9. 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

10. 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

11. The Tribunal has before it the Department's file relating to the applicant. The Tribunal has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. This material includes:

    ·     application for protection visa (including 866B Form, 866C Form and Forms 26, 80 and 160) for the applicant;

    ·     statutory declaration dated 30 April 2015 from the applicant;

    ·     copy of the applicant’s passport;

    ·     delegate’s decision record dated [in] September 2015, a copy of which was provided to the Tribunal by the applicant;

    ·     statutory declaration dated 26 October 2016 from the applicant and submission to the Tribunal from the applicant’s representative dated 25 October 2016;

    ·     audio recording of the Tribunal hearing on 1 November 2016; and

    ·     statutory declaration dated 7 November 2016 from the applicant and submission to the Tribunal from the applicant’s representative dated 3 November 2016 including four online articles referring to the establishment of the Social Democratic Party in Vietnam.

12. The applicant's claims are set out in his statutory declaration dated 26 October 2016, provided to the Tribunal:

    Personal Background:

    4. I was born on [date] in [City 1] in Binh Thuan in Vietnam.

    5. I lived in [Village 1], [District 1], Binh Thuan, Vietnam prior to arriving in Australia.

    6. My family composition is as follows:

    7. Father — [named] — Born [year] (Vietnam)

    8. Mother — [[named] - Born: [year] (Vietnam) My education history is as follows:

    9. I arrived in Australia on [date]/01/2014 as a holder of Student (Temporary) (Class TU) visa holder.

    My Claims For Protection:

    10. I arrived in Australia [in] January 2014 on a student visa.

    11. I came to Australia as I feared for my safety in Vietnam. My parents were also concerned about my safety. Obtaining a student visa was the quickest way to leave Vietnam. My parents used all their savings to send me to Australia.

    12. I was very fearful for my safety after I was detained, and threatened with imprisonment by the Vietnamese Police.

    13. Ever since I was matured enough to understand politics I began to dislike the way the Communist regime was operating. I witnessed how my father, who worked as [an Occupation 1] in a government [workplace] had to pay bribes to avoid harassment from corrupt officials in the government. He was harassed for speaking against land confiscation and corruption in [his] industry.

    14. My father paid bribes to avoid harassment from authorities.

    15. My father had told me about many instances where he was punished by authorities for exercising his basic human rights. He had been beaten by police for speaking up to protect rights of farmers. He told me many stories about forceful land confiscations in our village.

    16. I began to read various publications on land right violations and about people's protests. I had a group of friends at high school who shared their ideas and information in relation to limitations of freedoms of Vietnamese citizens.

    17. In August 2013, after I have completed my High school studies, one of my online friends invited me to join the Social Democratic Party. I was very excited about joining them. He also asked me to join a secret group of party members who had been organising various protests government. They had been secretly organising protests and distributing leaflets in my home town. In or around late August 2013, there was a planned demonstration to protest confiscation of farm lands of Buddhist farmers in my home town. I delivered leaflets. About 13 people were in the protest.

    18. It was evening when I returned home. The local police were waiting near the gates of my house. I was asked to get in their vehicle and taken to the police station. They kept interrogating me for more than 4 hours. They seized my cell phone and camera. During the interrogation, they beat me with a rubber baton. The officers used their elbows to hit me on the head, chest and back. I was helpless and very fearful of my life.

    19. Sometime later that day, my father went looking for me as I did not return home that night. He later found out that I was in detention. They released me after signing an undertaking not to participate in any political activities in future. My father told me that he had paid a heavy bribe to take me out.

    20. Since that day I was living in constant fear. I knew that the police have secret files on political activists. Vietnamese Penal Code has provisions to arrest activists under "conducting propaganda against the state". When they want to arrest anti-government activists, they fabricate charges. In May 2013, the authorities arrested a university student Nguyen Phuong Uyen and the Peoples' Court sentenced her to six years' imprisonment. She was also from Binh Thuan. Vietnamese government considers anti-government leaflet dropping by as an act of terrorism.

    21. After some days of my arrest, my home was stoned by some people. I know that they are the agent of the regime. My neighbours have seen them attacking my house. The agents do these kinds of activities to scare the political activists.

    22. I cannot seek help from anyone, the police are the perpetrators. They act as agents of the government. The police have freedom to act according to their wishes. The government has laws to protect it, not their citizens. My parents decided that I should immediately depart from Vietnam.

    23. I feared that the police will put me in jail, or put me in long term imprisonment by fabricating charges as they began to monitor my activities. My parents were worried about my safety. They paid money to an agent in Vietnam to send me to Australia. Again, my father paid bribes to get my documents ready for my departure.

    24. After I left Vietnam, my house was attacked twice by the secret agents. Police have visited looking for my whereabouts. My parents have told them that I had left for Australia to study. However, they now believe that I am here to organise Anti-Communist activities. They have warned that I will face the consequences upon my return. I know what they mean by "facing consequences". That means they are ready to put me on jail for conducting propaganda against state. I do not want to go to jail. I am young and I have my whole future ahead of me. I believe that I can study hard to achieve my goals if I work hard.

    My response to Department's adverse findings

    25. In my statutory declaration, I inadvertently referred the name of the party as Democratic Party of Vietnam. That should have been corrected as Social Democratic Party of Vietnam. The delegate made adverse findings in relation to my knowledge about the Democratic Party.

    26. The party I joined was founded in 2013, the year I joined it. At the time of joining the party the only thing I was interested was its activities against land confiscations. I knew about it as a party promoting democracy in Vietnam. At the time of my protection visa interview I was very nervous and I could not explain why I did not know the details of the party or the difference between Democratic party and social Democratic party.

    27. The delegate also had concerns about my obtaining of passport legally in Vietnam. At the interview, I said that I paid "people in a higher position" to obtain my passport. In Vietnam, obtaining passport involves several steps involving police and local authorities in addition to the immigration officials. My father had to pay bribes to police at different stages of processing his passport application.

    28. The delegate made adverse findings on my responses at the interview and the delay in applying for protection. My agent requested the delegate to give me an opportunity to put my responses in writing. I was not given an opportunity.

    29. The reason for delay in applying for protection was mainly my lack of knowledge of protection visa process. My agent was assisting me to stay in Australia as a student and I did not know that I could apply for protection. However, when my MRT application was refused I began to explore the other avenues as I was fearful of returning to Vietnam.

    30. The delegate has also considered my delay in departing Vietnam. At the time of his departure, the authorities had not laid charges against myself. I was released after signing an undertaking not to involve in protests. I knew that I would not be taken into jail soon after my arrest.

    31. I need protection from Australia. I do not want to return to Vietnam to live in a jail. I do not want to live in fear. If I return, I will be subjected to imprisonment.

13. Following the first Tribunal hearing, the applicant provided an additional statutory declaration dated 7 November 2016:

    1. I am a member of Social Democratic Party in Vietnam.

    2. I was asked to join this party by one of my online friends.

    3. The Social Democratic Party was founded in 2013 by civil rights lawyer Le Hieu Dang and Ho Ngoc Nhuan a journalist.

    4. Both were members of the Communist Party who were against the one-party rule in Vietnam. Le Hieu Dang has been a member of the Communist Party for 45 years.

    5. They expected that the Social Democratic Party can be co existent with the ruling Communist Party so that people would have a voice against the bad practices of the Communist Party.

    6. The party was founded after the co-founders signed an online petition for a Constitutional change. The draft had proposal for multiparty rule.

    7. That petition was signed by more than 12,000 former bureaucrats, academics and rice farmers speaking out publicly against proposed constitutional changes by the regime.

    8. However, the regime did not include the proposals in the petition, instead it further strengthen its grip on power by new reforms.

    9. Vietnamese Constitution banes the formation of political parties. Therefore, the party was banned.

    10. Even though the party was banned, I continued to support it. I believed that the people should fearlessly act against the violations of people's rights in Vietnam.

    11. The philosophy of the party was based on just, free and democratic society where people could live together fairly and honestly. The founders believed that a real democracy can be reached by changing the country into a republic.

    12. Vietnamese regime would not permit political opposition. It always punished and will punish any political uprise.

14. At the second hearing, the applicant told the Tribunal that his application and statutory declarations were accurate and complete and he did not have any change in circumstances since his last hearing with the Tribunal in November 2016.

15. The applicant said that other than his years [at] school when he lived in [City 1] at a boarding school, he has always lived in [Village 1] and this is where his parents and siblings still live. The applicant said he completed his schooling in June 2013 prior to the completion of his final exams in July 2013. He stayed in [City 1] during this time and returned to his village around middle to end August 2013. The applicant told the Tribunal that his father is [an Occupation 1] in the public sector in Vietnam and he also has a private [business].

16. The applicant told the Tribunal that his intention in coming to Australia on a student visa was to study and to ‘keep his life’. He said he was aware his initial student visa was a temporary visa but Australia was chosen because it was an advanced country, the lifestyle in Australia is good and the security and protections over citizens are exercised very well. In relation to the applicant’s second student visa application once onshore, he told the Tribunal that he was aware that all student visas are temporary and it would not allow him to stay in Australia permanently. The applicant said his current representative assisted him with his second onshore student visa application but he did not tell his representative about his problems in Vietnam until early 2015.

17. The Tribunal noted that the applicant was aware that his visa applications were for temporary visas but that he said he travelled to Australia due to fear for his life and asked the applicant what enquiries he made once he arrived in Australia about his options to stay permanently. The applicant said that he talked to friends who had been in Australia and searched the website. He said that he looked at getting married to an Australian or if he graduated, then he could get employment. The applicant told the Tribunal that he thought he was aware of these options before he left Vietnam but he had to get to Australia first. He said he was not aware of protection visas because the majority of Vietnamese want to stay in Australia permanently and the most popular ways to stay are marriage or employer sponsor.

18. The applicant told the Tribunal that he applied for a protection visa because he felt scared and he thought his life would be put in danger if he returned to Vietnam. He said he feared being arrested, tortured and put in jail because in Vietnam, if you are against the government they will consider you a terrorist and they will arrest, torture and jail you. The applicant said that this is the only reason he fears returning to Vietnam.

19. The applicant said that the Vietnamese government would consider him against it because in 2013 he participated as a member of the Democratic Party and he distributed leaflets that said that the government tried to get land from citizens without paying and he was arrested and interrogated. He said he was held in custody for one night before being released and this is why he had to find ways to escape to Australia. The Tribunal noted that the applicant had referred to his participation in the Democratic Party but that he had claimed he was a member of the Social Democratic Party and asked the applicant which party he was referring to. The applicant stated that he was a member of the Social Democratic Party.

20. The Tribunal asked the applicant about his joining and membership of the Social Democratic Party. The applicant told the Tribunal that he joined the party while he was still at school in [City 1] around early to mid-July 2013. He then said that he joined the party after his exams so around the end of July 2013. The applicant said that the Social Democratic Party was not so much a political party but a ‘group’ made up of people who hate the ruling party and party members were those who want to improve people’s lives.

21. The applicant told the Tribunal that in order to become a member, he went to the website and registered and he did not need to pay a fee. The applicant said that he and others were frustrated with the ruling party confiscating land and he got furious and upset and he wanted to distribute leaflets and contribute to reform conditions. The Tribunal asked the applicant why he registered for this group. The applicant said that he went to a party and met a young man who recommended the website and he said that the group was working against the ruling party and working to help local people. The Tribunal asked the applicant what local people the group was helping. The applicant said that when they took away land from local people, group members would go and distribute leaflets so that all locals understood the situation and knew what was going on. The Tribunal asked if this was all over Vietnam or local to [City 1]. The applicant said that it was not only that area.

1. The Tribunal asked the applicant what information he received once he joined. The applicant said that he was provided with information about when the distribution of leaflets would be organised and who receives corruption and bribery in that area. The applicant said he did not receive any confirmation of his registration or membership when he joined but that he could look at the website to get information. He said that he knew he was a member with no actual confirmation because he was able to look at this website which was not a public website. He said he was introduced by a member so he had access to register. He said he does not know if he is still a member of the group.

2. The Tribunal asked the applicant about the philosophy and policies of the Social Democratic ‘group’. The applicant said that the philosophy of the group is to get freedom. The applicant referred to speech and democracy that the national party failed to provide. The Tribunal asked the applicant how the group proposed to achieve ‘freedom’. The applicant said the group wants to further develop the country to have freedom of speech, to do what you want. The Tribunal asked the applicant if he could elaborate on how the group intended to do this or how they have done it. The applicant said that at the time, he was very frustrated with the current Communist Party ruling the country and how they worked and with corruption. He said that when he was young, he wanted to make a small contribution to change.

3. The Tribunal asked the applicant how old he was when he first formed a political opinion. The applicant said he was around [age range]. The Tribunal confirmed that this was not long before he joined this group and asked the applicant what caused him to form his opinion at that time. The applicant said that he heard from his father what happened if he didn’t listen to his boss or bribe officers and from friends who were arrested illegally. The Tribunal asked the applicant to describe his personal political opinion. The applicant said he wanted to have life with freedom and to do what he wanted but within the legal framework.

4. The Tribunal asked the applicant if the group had any other beliefs or how else they might achieve that aim. The applicant said he was not very clear about how they would achieve that but they were planning to do communication by distributing leaflets so that people everywhere will know the real situation about the Communist Party and how bad the situation was. The Tribunal asked the applicant if he was aware of anything else in relation to this group, whether they were still operating and whether he participated in any political activity prior to this group. The applicant said he had no additional information about the group, he did not participate in anything prior to this group and he was not aware if the group was still operating as he has not had any contact with the group since he has been in Australia because his family stopped him from participating in this group. He said his last communication with the group was when he was arrested by the police.

5. In relation to how the applicant knew where to go for demonstrations and action, the applicant told the Tribunal that he got his information by logging-in to the website and through text message from the person who gave him the information about registering. He said that he attended a demonstration at the end of August in his home village and when he came back home that afternoon, some police were in front of his home. He said he was put in a car and at the police station, they started asking questions of him for four to five hours. The applicant claims the police beat him and tortured him, wanting him to confess to doing something against the government. The applicant claims he was put in custody for one night and he was released the next morning after he signed an agreement that he will never participate in any activities against the government. The applicant said that he later found out that his father had to pay a bribe for his release.

6. The applicant told the Tribunal that the demonstration he attended in his home village began with a dozen people but then others joined up to around thirty or forty people. The applicant said that after three or four hours, police came and broke up the demonstration. The Tribunal noted that it sounded like a long time that twelve or up to thirty or forty people were going before the police came to break up the demonstration. The applicant said that at first, it was spontaneous and there were only a few people and then many got scared and didn’t dare participate and then the police discouraged more people and suppressed it.

7. The Tribunal asked the applicant what happened once the police arrived. The applicant said that the police used rods and canes to break up the demonstration. The applicant said that the police did not speak to him or arrest him at the demonstration. They were just waiting at his house later that day. The applicant did not know how the police knew who he was or where he lived. He then said that they may have got the information from other protestors. The applicant also told the Tribunal that the protest was in his local village because it was against the government who confiscated land from people that was used for religious purposes. The Tribunal asked if the issue was about general land confiscation or a specific local issue. The applicant said that it was the topic of land confiscation in general that is happening in many places. The applicant then said that it related to a specific incident in his village when land was confiscated illegally because it was agricultural land belonging to the temple.

8. The applicant told the Tribunal that he did not organise the demonstration, he only participated in it and he did not remember what information the leaflets he was handing out contained. He said that it was something like “against confiscating land illegally”. He said this was a general message but when he handed them out, he would also talk about the local land confiscation.

9. The Tribunal asked the applicant if he attended any other demonstrations or handed out leaflets. The applicant said this was the biggest incident he ever participated in but he also handed out leaflets but these were smaller incidents. The applicant then said that there were no incidents when he distributed the leaflets. He said he did this after he joined the group and he did this in [City 1] where he distributed the leaflets to people walking past on the street but this was all the activities he was involved with.

10. The Tribunal asked the applicant about his interrogation by the police. The applicant said they were asking him about whether he was a member of a party which was opposing the government and who the other members were and how many there were. The applicant said that he thinks they have files of members and that they arrested other protesters. The applicant said that he does not know what happened to the other protesters after they were in custody.

11. The applicant told the Tribunal that other than his arrest and interrogation, people threw rocks at his house. He said this occurred twice, once when he was in the police station and then again two or three weeks later. The applicant said that whenever he or his family see the police, they always threaten. The applicant said that since he has been in Australia, his family are regularly threatened and have rocks thrown at their house and they have been told that if he returns, he will be arrested. The Tribunal noted that the applicant said he signed an agreement with the police and was released and asked why they would want to arrest him now. The applicant said that the police might not have had all the information about his participation when he was arrested and in custody and they might now have more evidence of his participation so they can arrest him at any time.

12. The applicant said that his parents decided he needed to leave Vietnam after the incident where he was arrested and they began completing the paperwork and bribing people to get approval to go. He also said he has not been involved in any political activities since he has been in Australia.

13. In accordance with s.424AA procedure, the Tribunal advised the applicant that it had concerns regarding his political involvement. For example, the Tribunal noted that the applicant’s knowledge of and involvement with the Democratic Party (as first set out in his initial statutory declaration) and then the Social Democratic Party appeared somewhat superficial, vague and lacking in detail and not commensurate with someone who became a member of a group (or political party) and protested and handed out material on behalf of the group. The Tribunal noted that the applicant’s evidence to the Tribunal regarding his activities with this organisation was inconsistent with what he told the Tribunal at the hearing in November 2016 and it had concerns that someone who was so interested to become politically involved in Vietnam has not continued any political involvement in Australia. The Tribunal explained that this information was important because it could cause the Tribunal to doubt the credibility of the applicant’s claim to have ever been involved politically in Vietnam.

14. The applicant was invited to comment and advised that he was entitled to seek additional time to do so. The applicant did not seek additional time and stated that when he joined the Social Democratic Party, he was elated and furious with the bad actions taken by the current government. He said that he just thought that by joining, he could do something to help and he did not pay any attention to any other information about the operations of the group. He said he was not a member for long before he was arrested and then he got scared and had to flee. In relation to the philosophies, the applicant thought he could do something for the Vietnamese people and in relation to not being involved in politics in Australia, he said that at first, when he joined, he was very young and very elated and he had not participated in anything since because he signed an agreement of not participating in any activities. He said his father was [an Occupation 1] and he had to be a member of the Communist Party so he was concerned about him.

15. In addition, the Tribunal noted that it was not aware of any country information that supported the Social Democratic Party being successful in becoming a political party in Vietnam and that the material provided by the applicant refers to the Party being ‘founded’ in mid-August 2013 so the Tribunal did not know how the applicant could become a member or register for a group or party that did not exist when he said he became a member in early to mid-July or even late July 2013. The applicant was invited to comment and said that maybe the official announcement of the establishment of the group was not until August but before that, you could register to be a member.

16. The Tribunal noted that it might have doubts about the applicant undertaking activities as he described handing out leaflets on the street in [City 1] on behalf of an organisation that had not been established. The applicant was invited to comment and said that when he was recommended by a friend, he was asked to accompany him to distribute leaflets and he thought the activities belonged to the group and that is why he did it. The Tribunal asked if the applicant was suggesting that the leaflets he claims to have handed out in [City 1] were for a different group. The applicant said that he did not think much about where the activity belonged to and whether it belonged to the Social Democratic Party or others. He said he was just frustrated with the Communist Party and he was young and elated and he wanted to join in to this activity.

17. The Tribunal also noted its concern regarding the applicant’s delay in applying for protection. The Tribunal noted that the applicant did not apply for a protection visa for some sixteen months after his arrival in Australia and he was advised by the Department about protection visas when his [student] visa was refused but it was another six months after his MRT decision, including six weeks following that decision before he applied for protection. The Tribunal also noted that the applicant claimed to have left Vietnam in fear of his life and he claimed that police had visited his house one week after he arrived in Australia and there had been attacks on his house since he has been in Australia. The Tribunal invited the applicant to comment and he stated that he wasn’t told straight away by his parents that his has had been attacked. He also said that he wanted to change visas to continue studying in Australia and when he had a problem with that visa, that is why his family told him about the problems and that is why he then told his representatives about his problems after the Tribunal affirmed his earlier decision.

18. The Tribunal asked the applicant if there was anything else he would like to make the Tribunal aware of. The applicant said that he got scared to think of the interrogation because they torture you so you say what they want. The applicant said that when they torture you, they use batons and they don’t hit you directly but use layers so that you are injured on the inside but it does not appear like it so they can say they did not torture you.

19. The Tribunal asked the applicant’s representative if he would like to make any submissions on behalf of the applicant and he advised the Tribunal that he had no further submissions.

    ASSESSMENT

20. 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.

21. 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.

22. The Tribunal notes that the fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

23. The Tribunal does not accept that the applicant was or is a member of the Democratic Party or the Social Democratic Party or otherwise involved in any anti-government activities in Vietnam. Having considered the relevant evidence, the Tribunal has concerns about the credibility and ‘well-foundedness’ of the applicant’s claims. The Tribunal does not accept that the applicant is credible in relation to a number of matters central to his claim to fear harm.

24. The Tribunal was also concerned about inconsistencies in the applicant’s evidence and on a number of occasions, the applicant gave evidence that was not credible and not consistent with country information which further undermined his credibility. The Tribunal has made these findings for the reasons set out below.

    ·The Tribunal does not accept that the applicant became a member of the Social Democratic Party, ‘organisation’ or ‘group’ prior to that group having been officially established and existing or even at the very least, having been ‘founded’. The Tribunal is not aware of any country information that supports the applicant’s claim that the Social Democratic Party was successful in becoming a political party in Vietnam. The Tribunal notes that the applicant’s revised claim in his statutory declaration dated 7 November 2016 that the party was founded in 2013 but banned by the Vietnamese Constitution although he continued to support it. However, as discussed with the applicant, the additional material he provided through his representative’s submission dated 3 November 2016 refers to the Party being ‘founded’ in mid-August 2013 which contradicts the applicant’s claim to have ‘joined’ the party in July 2013 or to have participated in activities on behalf of this organisation such as handing out leaflets in [City 1] in July 2013 when the organisation did not exist at that time.

    ·The Tribunal is not persuaded by the applicant’s explanation that people could register to be a member of the organisation prior to its existence or that he may have handed out leaflets on behalf of some other organisation without realising it and finds these explanations completely lacking in credibility. The Tribunal is particularly unconvinced that the applicant could ‘register’ for a political party or organisation prior to its existence and receive secret information about protests and who receives bribes when the information provided to the Tribunal by the applicant regarding the Social Democratic Party refers to the ‘Party’ being founded after an online petition was run by the co-founders seeking constitutional change to enable Vietnam to become a multi-party state. The applicant never suggested he signed an online petition regarding constitutional change and it would seem to the Tribunal that such a petition is vastly different to registering to become a member of a party or group that provided secret information about illegal protest activity and bribery and corruption.

    ·In drawing this conclusion, the Tribunal is mindful that applicants may not be able to remember exact dates and details. However, when the Tribunal discussed the applicant’s joining of this party or group, it referred to general timeframes and not exact dates and the applicant connected his joining to when he was still at school in [City 1] which was until at least late July 2013 and he specifically referred to his activity of handing out leaflets on the street in [City 1] prior to his return to his village in August 2013. In addition, when the Tribunal raised its concern regarding the ability for the applicant to have been a member of an organisation that had not been established, the applicant’s explanation did not concern any confusion regarding timing and dates but rather, that he was able to register prior to the establishment of the party or group and that perhaps he had undertaken activities in [City 1] for another anti-government group.

    ·The Tribunal also notes that applicant’s evidence changed between his original statutory declaration that he was a member of the Democratic Party of Vietnam to being a member of the Social Democratic Party of Vietnam in his submission to the Tribunal. It appears that his knowledge of the political party or group that he claimed to have become a member of was somewhat superficial, vague and lacking in detail throughout all stages of the consideration of his protection visa and not commensurate with someone who claimed to have been politically-minded “ever since he was mature enough to understand politics”. The Tribunal also notes that the applicant’s account of when he formed his anti-government political opinion varied and included “since he was mature enough to understand politics”, when he was [age range] and “since his childhood, the applicant also held views against the communist regime” as outlined by the applicant’s representative. Regardless of when the applicant formed an anti-government political opinion, all of his claims suggested this opinion was deeply held and particularly as it related to the treatment of and harm suffered by his father. If that was the case, the Tribunal expects that the applicant would be able to articulate a consistent and reasonably detailed account of the beliefs and philosophy of an anti-government organisation he claims to have joined, particularly in the Vietnamese context where it is possible that such action could lead to the applicant coming to the adverse attention of authorities.

    ·The applicant did not apply for a protection visa until some sixteen months after his arrival in Australia and he was advised by the Department about protection visas when his [student] visa was refused but it was another six months after his MRT decision, including six weeks following that decision before he applied for protection. The applicant claimed to have left Vietnam in fear of his life with the assistance of his parents and he claimed that police had visited his house one week after he arrived in Australia and there had been attacks on his house since he has been in Australia. The applicant also told the Tribunal he was aware his student visas were temporary visas and he was aware of permanent visas such as partner visas or skilled migration because most Vietnamese want to stay in Australia permanently and the most common way of doing so was through marriage or employer sponsor. If the applicant genuinely held the fears claimed, and was seemingly so aware of the permanency or otherwise of a range of Australian visas, the Tribunal would have expected him to have lodged a protection visa application, or to have at least made inquiries with the Department, shortly after his arrival in Australia about his options for staying in Australia permanently and well before the finalisation of his appeal to the MRT. In order to leave Vietnam, the applicant claimed his parents paid an agent to send him to Australia and he accessed the internet so he knew that Australia was an advanced country, the lifestyle in Australia was good and the security and protections over citizens are exercised very well. On this basis, the Tribunal does not accept the applicant’s explanation that he was unaware or unable to access information regarding protection visas. 

1. 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.

2. 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; 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

3. 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.

4. 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

5. 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).

6. 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).

7. 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

8. 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.

   …