1514487 (Refugee)

[2018] AATA 490

1514487 (Refugee) [2018] AATA 490 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514487

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Amanda Paxton

DATE:1 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 01 February 2018 at 12:03pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Membership of a particular social group – Persons with a drug related profile – Convicted for drug related offences – New claims raised at the Tribunal – Applicant’s child – Child custody dispute with grandparents – No well-founded fear of persecution – Complementary protection not available

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA , 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIBP v WZAPN; WZARV v MIBP [2015] HCA 22
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Yang v Carroll (1994) 852 F Supp 460

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 and Border Protection [in] September 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Vietnam, applied for the visas on [date] February 2015.

3. For reference in this decision, where relevant, the first named applicant will be known as ‘the applicant’, the second named applicant as ‘the applicant child’.

4. The applicant appeared before the Tribunal on 16 February 2017 to give evidence and present arguments, on behalf of himself and his child. This hearing was adjourned for reasons of time and was resumed on 21 February 2017.  The Tribunal heard evidence and argument from the applicant and his wife both separately and jointly.

5. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearings. The applicant provided a copy of the delegate’s decision record to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

13. The Tribunal notes that DFAT released a Country Information Report on Vietnam on 31 August 2015.[1] This DFAT Report has been updated, the most recent being published in 21 June 2017.[2] In line with its obligations under Direction No. 56, the Tribunal has had regard to the most recent report and carefully considered the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially from the report of August 2015 and does not raise any new issues for this assessment.

    [1] DFAT Country Information Report, Vietnam, 31 August 2015.

    [2] DFAT Country Information Report Vietnam, 21 June 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. At the time the applicants lodged this application for protection visas on [date] February 2015, the applicant was in immigration detention and, while submissions were made in respect to a request for a bridging visa to facilitate his release from detention, protection claims did not accompany the application.[3] The applicant made two written statements in connection with the bridging visa requests.[4]

    [3] DIBP CLF[number], ff. 18 – 69.

    [4] DIBP CLF[number], ff. 196 – 203.

15. The applicants’ claims for protection were set out in a submission by his then representative on [date] July 2015.[5]  The applicant claimed to fear harm on return to Vietnam due to an adverse profile arising from his conviction for offences relating to drugs in 2012 and compounded by his wife’s conviction for drug offences in 2015. It submitted that while the applicant returned to Vietnam after his conviction in June 2012 and remained there without adverse interest from the authorities until he returned to Australia in January 2014, his circumstances on return now would be different because at that time his wife had not been convicted of offences.

    [5] DIBP CLF[number], ff. 18 – 21.

16. The applicant claims his fear of harm is exacerbated by his wife’s family’s hostility towards him. He claims her family attempted to kidnap their oldest daughter and sought to remove her from his custody when he was in Vietnam between 2012 and 2014 because they did not approve of him. The applicant claims that the applicant’s wife’s family will manipulate the authorities into detaining the applicant in a compulsory drug rehabilitation centre as a drug user.

17. In the submission of 1 July 2015, it is submitted that the applicant faces harm as a person associated with drugs and perceived as a drug user and that he faces forced rehabilitation in a drug detention/rehabilitation centre. Country information from the Human Rights Watch, “The Rehab Archipelago: Forced Labour and Other Abuses in Drug Detention Centres in Southern Vietnam”, and the International Labour Rights Reform Forum is provided in support of these claims.[6]

    [6] DIBP CLF[number] ff. 18 – 20.

18. Further submissions in respect to the applicant were made on 14 February 2017 and 14 March 2017 in joint submissions concerning the applicant, the applicant child and the applicant’s wife, the subject of her own application for protection. It is submitted that the applicant remains at serious risk of harm on the basis of his association with drug use and the drug trade in the past, as evidenced by his conviction. It is also submitted that the applicant is unwilling to return to Vietnam because of a well-founded fear of persecution resulting from his imputed political opinion arising from the applicant’s drug conviction, and as a person who departed Vietnam unlawfully, sought asylum in Australia, and is a returnee from another country.

19. Further, it is submitted that the applicant is unwilling to return to Vietnam because of a well-founded fear of persecution resulting from his membership of a particular social group, “a person perceived by authorities to be associated with the drug trade or drug use”; “a person who departed from Vietnam unlawfully”; and “a person who sought asylum in another country”. It is submitted that the applicant’s profile as a drug user and association with the drug trade in the past confer on him heightened vulnerability to persecution for any or all of these reasons.   

20. In this submission, it is claimed that the pressure of being forced to return to Vietnam may be such that it would cause the applicant to return to substance abuse. It is also submitted that as a former drug user, the applicant is psychologically vulnerable.

21. It is submitted the applicant child has a well-founded fear of persecution resulting from her membership of a particular social group, as “a child of a person perceived by authorities to be associated with the drug trade or drug use”; “a child of a person who departed from Vietnam unlawfully; and “a person who sought asylum in another country.” It is claimed that in the event the applicant is interned in a drug detoxification/rehabilitation centre for any reason, the applicant child would be separated from his father, and that this separation would amount to serious or significant harm.

22. As evidence in respect of the applicants’ claims, the applicant’s wife’s statutory declaration of 2 February 2017 was submitted. A timeline was also submitted jointly for the applicant and the applicant’s wife.[7]

    [7] AAT 1514487, f. 100.

23. In the submission dated 14 February 2017, the applicants’ representative provided information from a range of sources including the United States Department of State, Country Reports on Human Rights Practices for 2015: Vietnam, 13 April 2016; Human Rights Watch, Vietnam: New Wave of Arrests of Critics, 27 January 2017; Amnesty International, Radio Free Asia, concerning treatment of suspects, the right to a fair trial, suppression of dissent and activists, and political prisoners, and the impact of the toxic chemical spill from the Vietnam unit of Taiwanese conglomerate Formosa Plastics Group in 2015.[8]

    [8] AAT 1514487, ff. 102 – 108.

24. In her submission of 14 February 2017, the applicants’ representative submitted DFAT country information, concerning harsh treatment of drug users in Vietnam and detention in administrative centres without charge. United States Department of State information is also provided which indicates that the Vietnamese government confines drug users in “compulsory detoxification establishments” where mistreatment occurred.   It is submitted that if the applicant and his wife were interned for their criminal history or drug use, they would be separated from their children.[9]

    [9] AAT 1514487, ff. 102 - 108.

25. At hearing, the Tribunal permitted the applicants additional time to provide further submissions. On 14 March 2017, the applicants’ representative submitted documentation setting out the applicant’s offending and indicating that he received convictions for these offences on 6 July 2012.[10]  Also submitted was country information including material concerning treatment of Vietnamese asylum seekers and boat venture organisers, conditions in detention and treatment of people in drug rehabilitation centres.

    [10] AAT 1507731, ff.157 - 160.

26. On 11 September 2017, the applicants’ representative wrote to the Tribunal submitting that given the passage of time since the hearing, if the Tribunal proposes to make a negative decision in this case, particularly if credibility is an issue, a further hearing will be necessary. In considering this submission, the Tribunal takes into account that the applicant is represented and considers that had the applicants’ circumstances in respect to their claims for protection changed, the applicants’ representative would inform the Tribunal. As discussed above the Tribunal notes that the DFAT Country Information Report, Vietnam from August 2015 that was put to the applicant was updated in June 2017. As above, the Tribunal has had regard to the most recent report and carefully reviewed the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially from the report of August 2015 and does not raise any new issues for this assessment. As discussed in the assessment below, concerns about the credibility of certain specific claims were addressed and clarified at the hearings. The Tribunal has considered this submission and has decided not to conduct a further hearing.

    Country of nationality

27. The applicant claims to be a citizen of Vietnam. The applicant claims he first entered Australia on [date]June 2009 as the holder of a student [visa] using a passport in his own identity. He claims he subsequently travelled to Australia on [date] January 2014 under another identity using another person’s passport and visa. The applicant has acknowledged his actions and Departmental investigations have confirmed the applicant’s identity as claimed. On the documentary evidence before it, the Tribunal is satisfied that the applicant is a citizen of Vietnam. The Tribunal accepts that Vietnam is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).

28. On the basis of the evidence of the Birth Certificate of the applicant child, the Tribunal is satisfied the applicant child was born in Australia on [date].[11] The applicant child’s birth certificate does not show a father but it is claimed he is a Vietnamese citizen. The Vietnamese law on Nationality includes the following provisions for children born overseas to be Vietnamese citizens at the time of their birth.

    ·     Both parents are Vietnamese citizens;

    ·     Their mother is a Vietnamese citizen and their father is unknown; or

    ·     If one parent is a Vietnamese citizen and both parents agree the child is to be a Vietnamese citizen.[12]

    [11] CLF2013/[number], f. 48.

    [12] “Law on nationality”, The Socialist Republic of Vietnam, 1 January 2008, CIS24205

29. There is no information before the Tribunal to indicate that either of the applicant child’s parents were an Australian citizen or permanent resident at the time of her birth. On the evidence before it, the Tribunal is satisfied that Vietnam the country of reference for the purposes of assessing the applicant child’s claims under ss. 36(2)(a) and (aa).

    Third country protection

30. On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicants do not have a right to enter and reside in a third country.

    Assessment of claims

31. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[13]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

    [13] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482.

32. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[14] 

    [14] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.

33. As discussed extensively in the delegate’s decision provided to the Tribunal by the applicant, the applicant has repeatedly provided inconsistent and unreliable evidence in connection with his visa applications and his actions including travelling to Australia on another person’s passport and using another person’s identity to obtain a driver’s licence, which lead the Tribunal to the view that he is not a reliable witness. However, the Tribunal considered the applicant’s oral evidence was in many respects open and genuine, while noting, as discussed below he was vague and unconvincing in explaining discrepancies in aspects of his own and his wife’s evidence concerning the conduct of his wife’s parents.

34. On the basis of the oral evidence of the applicant at hearing and documentary evidence before it, the Tribunal accepts the following as fact:

    a.    The applicant was born [date]in Nghe An Province, Vietnam, and grew up in the family home in Vinh city.

    b.    The applicant commenced a relationship with his de facto wife in 2007/2008. They met in Vinh [city]. The applicant’s wife’s parents were living in [Country 1] and the applicant’s wife who had been living with her [relative] commenced living with him and his family in 2009.

    c.    The applicant travelled to Australia on a student [visa] in 2009 because his parents wanted him to study. He had finished Year 12 and started university. His wife stayed with his parents and was supported by them.

    d.    Not long after the applicant’s departure from Vietnam, his wife found out she was pregnant and their first daughter was born in Vietnam in [date].

    e.    The applicant and his wife are in touch with his parents and [brother] on an almost daily basis because they speak with their oldest daughter who is now in [grade] at school.

    f.   The applicant’s wife departed Vietnam on [date] July 2010 using a friend’s passport containing a student visa, leaving their daughter in the care of his parents. 

    g.    The applicant’s student visa was cancelled in [date] May 2011 because he was not attending school in Australia.

    h.    The applicant was arrested in June 2012 on drug related charges, and on [date] July 2012 he was convicted and sentenced to 30 days imprisonment as part of an aggregate sentence to be served concurrently.[15]

    [15] AAT 1514487, ff. 127 – 130.

    i.   The applicant was released into immigration detention having served the time on remand and on [date] July 2012 he was removed from Australia to Vietnam. He returned to live with his family and in this period he stayed home looking after their oldest daughter.

    j.   The applicant’s wife gave birth to their second child, the applicant child, in Australia on [date]

    k.     The applicant returned to Australia using a false identity to obtain a [student] visa in January 2014.

    l.   The applicant was located as unlawful by the Department following his application to [a state authority] for a learner’s permit under a false identity. He was placed into immigration detention on [date] January 2015.

    m.   [In] January 2015 the applicant’s wife was arrested and charged for drug related offences and [remanded].

    n.    In April 2015, the applicant was released from immigration detention on a Bridging visa E enabling him to look after their child in Australia.

    o.    [In] April 2016, the applicant’s wife was convicted of drug offences [and] sentenced to nine month’s imprisonment. She was released at that time on the basis of time served.

    p.    In Australia, the applicant is not working because he does not have work rights, and he and his wife and child share accommodation.

    Harm from the applicant’s wife’s family

1. The Tribunal has considered whether the applicant has a well-founded fear of persecution now or in the foreseeable future or a real risk of significant harm on return to Vietnam from his wife’s family. At hearing, the applicant and his wife claimed his wife’s parents disapprove of the applicant and may seek to separate the applicant from his wife and children by “dobbing in” the applicant to the authorities, telling them about his convictions and immigration history and devising a way such that he is detained in a drug rehabilitation centre or in criminal detention on fabricated charges.

2. In support of this claim, the applicant wrote in his statement of July 2015 that his wife’s family had treated her cruelly and disapproved of him. At the joint hearing with the applicant’s wife, the applicant’s wife supported the claim that her parents do not approve of their relationship. The applicant stated: “I don’t want to think about those things and I don’t understand what sort of people they are. They have disapproved of our relationship since we first met” and when his wife was pregnant with their first child, his wife’s parents prohibited her from having a relationship with him and tried to persuade her to have the pregnancy terminated.

3. On the consistent evidence of both the applicant and his wife, the Tribunal accepts that the applicant’s wife’s parents did not approve of the applicant and his relationship with their daughter and wanted his wife to terminate the pregnancy. However, the Tribunal notes that his wife’s parents permitted their daughter to live with the applicant and his family when they were living in [Country 1] and his wife had the baby as they both wanted despite her parents’ claimed disapproval. The Tribunal does not consider the applicant’s wife’s family conduct at that time is indicative that they intend serious or significant harm towards the applicant. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from his wife’s parents on this basis.

4. In his statement of July 2015, the applicant indicated that he faces harm from his wife’s family because they do not want him in their grandchildren’s lives. He stated that his family never speak to his wife’s family. He stated that when he was in Vietnam between July 2012 and January 2014, her family tried to take custody of his eldest daughter because they did not want him around his daughter. He stated:

   I had to ask the police to find her for me. My wife's family went to [his daughter’s] school and told them they were her grandparents, and it was their right to take her. She was gone for two days. My family went to their home with the police, and they returned our daughter to us. [His wife] and I are both afraid that her family will take our children and not let us see them. This is a very sensitive family issue and very hurtful to me. It seems they are happy with my parents having custody of my wife and my daughter, but not with me having contact!

5. In written submissions, the applicant states that in 2012 after he had returned to Vietnam, his wife’s family wanted to take their grand-daughter into their custody and kidnapped her. However, the applicant’s and his wife’s evidence about these events contain significant discrepancies. The applicant’s wife wrote that her parents kidnapped her daughter by going to the school and telling the school they had a right to take the child because they were her grandparents, and they took her for two days, returning her only after the applicant’s family, accompanied by police, went to the applicant’s wife’s family home. The applicant’s wife wrote that on another occasion her parents, who wanted to take their grand-daughter into their custody, went again to the school but the school did not agree to release their daughter and contacted the applicant’s husband’s family.

6. However, at the joint hearing, the applicant told the Tribunal that when he returned to Vietnam, his wife’s parents knew he was there and came to his house and caused trouble. According to the applicant, his wife’s parents said that his child is their grand-daughter and they wanted to have custody of her.  When asked to expand, the applicant said his wife’s parents “sent people (their family members) to come and verbally abuse them and one of them hit my mother.” He stated that on another occasion when his daughter was at school his wife’s parents went to the school and wanted to pick up his daughter but the school did not agree and called his parents. He and his parents went to the school and the local police were called to help. The police intervened and said the applicant’s wife’s parents did not have the right to get custody. 

7. In clarification to the Tribunal, the applicant stated that the first occasion where the applicant’s wife’s parents sought contact with the child while he was in Vietnam was when they went to the school and the school did not permit them to take the child. He stated that there was only one occasion where his wife’s parents went to the school. He stated that his wife’s parents did not kidnap the child on any occasion and the child was not taken from the school for two days. The applicant stated that from the outside it looked like his in-laws wanted to bring their daughter home for a visit with them, but from his point of view they wanted to take her permanently. He stated that it is hard for him to say what they were thinking, that he does not know what they think. On the basis of the oral evidence of the applicant, the Tribunal concluded that the applicant’s daughter was not kidnapped by the applicant’s wife’s parents as previously claimed.

8. At hearing, the Tribunal sought more information about the applicant’s claim that his wife’s family members went to the applicant’s home and someone hit his mother because they wanted custody of the child, noting that this was a new claim. The applicant stated that he did not mention this incident before because “that is not a good thing to say and that is why I did not mention that.”  With prompting, the applicant stated that shortly after the incident at the school, his in-laws came to his parents’ home and were invited into the house but after some time an argument started because his in-laws said they had the right to take his daughter home. When they tried to insist that his daughter go back to their family, there was a verbal argument between the families and some physical fight, “but not that big.”  According to the applicant at hearing, at that time he did not know but there were some people waiting outside the house who tried to come in and take the daughter away but his mother tried to keep her. The local police came and the people had to leave. The daughter remained with his parents and was not kidnapped.

9. The applicant explained that he had not previously raised the claim that the police came to his family home to intervene in a fight or discussed it with his wife because he did not want to worry her. Given the significance of this incident to his claim to face harm from his wife’s parent’s the Tribunal considered this explanation to be unconvincing. The Tribunal has considered this testimony and, noting that these claims had not been raised before, formed the view that it was shifting and overall the Tribunal considered the applicant’s evidence lacked the clarity the Tribunal would expect of someone recounting events from his own experience. On this basis, the Tribunal does not accept that the police were called to the applicant’s home following an altercation with members of his wife’s family. However, the Tribunal noted that when asked to clarify events, the applicant was definite that his child was not kidnapped by his wife’s parents at any time and his child remained with him. The Tribunal was satisfied that this was the case.    

10. Attached to the applicant’s submission of July 2015, was a document purported to be a “police report regarding the attempted kidnapping.” It was indicated that this document was relevant to the applicant’s claim that he requested police assistance to find his daughter when his wife’s parents took her from the school.[16] This document is not translated. However, discussion with the applicant at hearing suggests this document, which discusses the applicant’s family circumstances, was submitted by his family in connection with arrangements for custody of the child. On the basis of the evidence of the applicant at hearing that the child was not kidnapped for any period, the Tribunal does not accept this untranslated document supports a conclusion that this is a police report of a kidnapping.   

    [16] DIBP [file number], f. 5.

11. At the applicant’s representative’s suggestion, the Tribunal enquired whether the applicant’s daughter had been in his wife’s parent’s custody previously. The applicant and his wife explained that at the time the applicant was in Vietnam, their daughter was not in the applicant’s wife’s parent’s custody but she had been in the past. The applicant stated that at that time normally their daughter would just visit his wife’s parents to stay in touch with them. The Tribunal considered this evidence was spontaneously and directly given, and on this basis, the Tribunal accepts that the applicant’s wife’s family had some form of custody of the child prior to the time the applicant returned and that they had been permitted contact with her.  Given that custody and visiting arrangements in respect of the applicant’s daughter had varied and giving weight to the applicant’s direct oral evidence to the Tribunal, the Tribunal accepts that disagreement or misunderstanding between the applicant and his family and his wife’s parents about contact arrangements may have emerged and required resolution.

12. However, on the evidence before it, the Tribunal does not accept the applicant’s wife’s parents kidnapped his daughter from the school or that people went to the applicant’s house to get custody of the child and that someone hit his mother or that the police were called. The Tribunal also takes into account that the applicant was in Vietnam for a period of 18 months, and in this time they did not seek to harm the applicant in any way. Taking all the evidence into account, the Tribunal does not accept the applicant’s wife’s parents’ conduct is indicative that the applicant has a well-founded fear of persecution or a real risk of significant harm from his wife’s parents to achieve separation of the applicant from his children or for any other reason.   

13. The Tribunal also notes the applicant stated at hearing that his family had moved about a year ago with his oldest daughter and his wife’s family had not been in contact with them since that time and that “everything is settled”. The applicant further stated that his oldest daughter is now at school, is doing well and is in good health. The Tribunal finds that the applicant child does not face kidnapping or any other mistreatment by her maternal grandparents. The Tribunal finds on this basis that the applicant child is not at risk of harm from the applicant’s wife’s family or from anyone else.

14. The applicant is now [age] years old and his wife is now [age] years old, and according to the applicant and discussed further below, he is drug free. The couple’s oldest child has been living with the applicant’s family since the applicant was in Vietnam in 2012, and according to the applicant there have been no further incidents where the applicant’s wife’s family have demonstrated interest in custody of the child. The applicant and his wife will be returning as a mature couple, who are demonstratively in a long term stable relationship, and who have been legally responsible parents for their youngest daughter who is now almost [age] years old. In these circumstances, whatever views the applicant’s wife’s parents may have about the applicant, the Tribunal considers the chance they will seriously or significantly harm the applicant by devising a way to separate him from the family is remote. The applicant’s wife told the Tribunal that no-one is aware of her or her husband’s drug use or convictions and as discussed further below the applicant is drug free. The Tribunal considers that the claim that the applicant’s wife’s parents may become aware of his previous drug use and convictions or that he will return to drug use, as discussed below, is purely speculative. However, the Tribunal has considered what would happen if the applicant’s wife’s family did become aware of these matters. On the basis of the accepted conduct of the applicant’s wife’s parents and the current circumstances of the applicant, the Tribunal considers the chance the applicant’s wife’s parents will seek to manipulate the authorities in some way into detaining the applicant in a drug rehabilitation centre, for example by disclosing to them the applicant’s past drug use and convictions, is remote and far-fetched. The Tribunal does not accept there is a real chance that the applicant faces serious harm or a real risk the applicant faces significant harm from the applicant’s wife’s parents or the authorities acting at the instigation of the applicant’s wife’s parents, or anyone else for this reason, on his return to Vietnam.

15. On the evidence before it, the Tribunal is satisfied there is less than a real chance that the applicant’s wife’s parents will seek to separate the applicant from his wife and children or to harm the applicants in any way. It follows that there is therefore not a real chance or a real risk the applicant’s wife’s family would report to the authorities his past convictions for any reason, should they become aware of them. The Tribunal finds the applicant does not have a well-founded fear of persecution or a real risk of significant harm on return to Vietnam from his wife’s family or from the authorities acting at their instigation.

    Harm from the authorities due to association with drugs

16. The Tribunal has considered whether the applicant has a well-founded fear of persecution or a real risk of significant harm due to a drug related profile arising from his drug use and association with the drug trade. It is submitted that these aspects of the applicant’s circumstances, separately or in conjunction with an adverse profile arising from the applicant’s unlawful departure from Vietnam, and his association with his wife who has also had a drug conviction and departed Vietnam unlawfully, heightens the chance the applicant faces a serious or significant harm on his return to Vietnam. The applicant claims to fear that he and his wife have a profile such that they face extreme scrutiny on return to Vietnam, and that they are likely to be charged, investigated, and considered for rehabilitation camps. It is submitted they face a real chance or a real risk of being harshly treated by the Vietnamese authorities in administrative detention and compulsory drug detoxification centres.

17. The Tribunal has assessed these claims below first individually and then cumulatively.

    The applicant’s drug use

18. It is submitted that the applicant has used the drug “ice” in the past and despite that he no longer uses drugs and has reformed himself, he is at risk of harm from detention in a drug rehabilitation centre in Vietnam because under the pressures associated with return to Vietnam, the applicant will relapse into drug use. The applicant’s representative has characterised the applicant as a drug user and has set out information about claimed human rights abuses faced by drug users in Vietnam, particularly in the form of forced rehabilitation, including information from Human Rights Watch and the International Labour Rights Forum concerning compulsory rehabilitation centres and their use under Vietnamese law and the use of forced labour in drug detention centers.[17]

    [17] DIBP CLF2015/[number], ff. 6 - 14.

19. At hearing, the applicant told the Tribunal that he started using drugs because he did not see a future, felt stuck and followed friends who were using ice. He stated he was using ice around the period when he was arrested in June 2012 and that he ceased drug use at this time. The applicant indicated to the Tribunal he was highly motivated not to use drugs again. He indicated that about a year prior to the hearing he had used ice again for a short period of time but he thought about his children and stopped. He stated he was drug free for all of the period of his return to Vietnam between July 2012 and January 2014. The applicant indicated that he is now in good health, physically and mentally, and drug free.

20. The Tribunal notes that in her submission to the Tribunal of 14 March 2017, the applicant’s representative wrote that it was the applicant’s intention to obtain a psychological report regarding the risk of his return to drug use in the event he is returned to Vietnam involuntarily. It was indicated that such a report had not yet been provided due to financial restrictions on the applicant, and the Tribunal was asked to wait to receive this report if unable to make a positive finding on the material before it.[18] The Tribunal has not yet received such a report and considers it is reasonable to proceed to a decision at this time because the Tribunal considers the evidence about the risk of the applicant’s return to drug use if he is returned to Vietnam discussed below is such that the Tribunal can make findings in respect to his risk of relapse.

    [18] AAT 1507731, f. 161.

21. The Tribunal has considered this claim and notes the applicant’s oral evidence that he has not used drugs for about a year, and that at the time of his last use he did so for a short time only before stopping. The applicant expressed remorse for his past conduct and stated that he hopes to have a normal life to compensate for things he should have done when he was young. Given the time now past where the applicant has been drug free, more than one year, and that the last time he used for a short time only before stopping, and given his stated motivation to remain drug free, the Tribunal does not accept the applicant is a drug user. The Tribunal also takes into account the applicant’s evidence that he did not use drugs in Vietnam, a period where, on his own account, he was under considerable pressure because he was separated from his wife and new baby and anxious about their welfare. On the evidence before it, the Tribunal does not accept the applicant’s representative’s characterisation of the applicant as a drug user, or that he has a profile as a drug user on the basis of drug use. On the evidence before it, the Tribunal does not accept there is any basis that the applicant’s wife’s family, the community or authorities in Vietnam will perceive the applicant as a drug user on return to Vietnam. The Tribunal has however also considered whether the applicant’s wife’s family, the community or authorities in Vietnam may perceive him as a drug user on the basis of his past drug use, should they be aware of it. The Tribunal takes into account that the applicant returned to Vietnam subsequent to a time when he used drugs but he did not experience any difficulties which he attributed to a perception that he was a drug user because of his past drug use. The Tribunal has also carefully considered the available country information to assess whether the applicant has a real chance or a real risk of being perceived as a drug user on the basis of past drug use in particular whether he faces detention in a drug detoxification/rehabilitation centre. Despite extensive research, including reports produced by DFAT, the United States Department of State, United Kingdom Foreign and Commonwealth Office and Human Rights Watch, the Tribunal found no specific country information regarding treatment of persons with a past drug use history that would indicate that people with a past drug use history are perceived as drug users in Vietnam. On this basis, the Tribunal considers that the chance the Vietnamese authorities will consider the applicant is a person in need of drug rehabilitation on the basis of his past drug use is remote. The Tribunal does not accept there is a real chance or a real risk that the authorities will detain the applicant for drug use. Further, as discussed above, the Tribunal does not accept that the applicant’s wife’s family will manipulate the authorities to the conclusion that the applicant is a drug user to secure his detention in a rehabilitation centre.

1. The Tribunal has considered the claim that the applicant will relapse into drug use on return to Vietnam because he will be under pressure and that he is psychologically vulnerable due to his past drug abuse. The Tribunal acknowledges that the applicant may face a range of psychological and practical pressures associated with re-adjustment to life in Vietnam and re-establishing himself and his family there. However, the Tribunal also notes the applicant is now [age] years old with a range of experience from which he appears to have built maturity. The Tribunal also notes that according to the applicant, he was drug free on his last return to Vietnam, a period of about 18 months. The Tribunal also takes into account that he will have the protective factor of the support of his wife and presence of his children. Taking all the factors into account, the Tribunal considers the claim the applicant will relapse into drug abuse has no basis and is purely speculative. The Tribunal does not accept the applicant will relapse into drug use on return to Vietnam thus conferring upon himself the profile of a drug user requiring rehabilitation. On the evidence of the applicant at hearing that he is in good health, physically and mentally, and drug free, the Tribunal is not satisfied the applicant’s mental or physical health vulnerabilities are such that he would face serious or significant harm on return to Vietnam. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm for these reasons.

   The applicant’s convictions

2. Accompanying his Protection visa application, the applicant presented Court documents presenting a summary and charges against him.[19] These did not indicate that the applicant was convicted of any offences and the applicant, who was very vague at hearing about the nature of his offences or the outcome of his Court hearing, stated that he was not convicted of anything. The delegate’s decision record provided to the Tribunal by the applicant indicates that Departmental records show that charges were dropped. In post-hearing submission to the Tribunal, documents from the Magistrate’s Court [were] provided to the Tribunal indicating that [charges] were withdrawn and the applicant was convicted of “[certain charges]”. The documents indicate that he was sentenced to 30 days imprisonment and released into immigration custody on the basis of time served.[20]

   [19] DIBP CLF2015/[number], ff. 23 - 30.

   [20] AAT 1507731, ff. 158 - 160.

3. On the evidence before it, the Tribunal accepts the applicant was convicted of “[certain charges]”. The Tribunal drew from the applicant’s evidence that he was arrested with a small quantity of drugs, [and] was released on bail to appear at a later date but did not appear. The applicant stated that he did not understand much about the law, and his friends told him not to go to Court the second time.

4. The Tribunal has considered whether the applicant’s criminal history confers upon the applicant a profile as a drug user/person to be punished with drug rehabilitation detention, or any other adverse treatment by the Vietnamese authorities.

5. As above, the Tribunal accepts that on release from criminal custody on [date] July 2012, the applicant was taken into immigration detention and on [date] July 2012 he was removed from Australia and returned to live with his family. The Tribunal enquired whether the applicant experienced any difficulties on his return. He told the Tribunal he did not experience any difficulties during that time, other than those arising from his concern about his wife in Australia, and indeed the applicant had to be prompted to discuss claimed difficulties in respect to his wife’s family and custody of his daughter. The applicant stated he departed Vietnam and came again to Australia in order to be with his wife. On the evidence of the applicant, the Tribunal finds that the applicant did not experience any difficulties from the authorities despite having returned from Australia with a criminal conviction related to handling drugs.

6. It has been submitted that the fact that the applicant returned to Vietnam and did not experience any difficulties from the authorities on return does not suggest that the applicant is safe, and that he had not received legal advice, nor did he understand the seriousness of his situation when he agreed to return, or that he had any other options. In this respect, the Tribunal notes as discussed in the delegate’s decision provided to the Tribunal by the applicant, at his interview with the Department on [date] July 2012 he indicated that he had no concerns about returning to Vietnam, and the Tribunal draws from this the conclusion that the applicant did not have a genuine fear of returning to Vietnam. It is further argued that at the time he returned he was not aware that he had been convicted of a drug offence. Given the applicant’s vague responses to questions about his experiences in the justice system discussed above, the Tribunal formed the view that the applicant was unclear about what he had been charged with or whether he was convicted. The Tribunal notes that his sentence of 30 days is indicative of a minor offence, and the Tribunal concluded that in the event the applicant had any concerns about the implications of his offending in Vietnam he would have sought to clarify the charges and outcome. He indicated that he did not seek to do this, supporting the Tribunal’s assessment that the applicant did not have a genuine fear of returning to Vietnam on this basis.

7. It was submitted that the applicant was not concerned about his return to Vietnam because he was not aware of the government's drug treatment program. As discussed below, Vietnam’s drug treatment program through rehabilitation detention centres has been in existence for many years and as the mainstay of Vietnam’s approach to drug treatment, the Tribunal finds it difficult to believe the applicant would not have been aware of them. However, the fact remains that the applicant returned to Vietnam following his conviction and stay on remand for drug related offences but experienced no consequences as a result from the authorities. The Tribunal does not consider the applicant’s knowledge or lack of knowledge of drug rehabilitation centres on his return in 2012 changes his factual circumstances.     

8. In considering the chance or risk the applicant faces serious or significant harm on return to Vietnam, the Tribunal considers the applicant’s evidence of his life on return to Vietnam is relevant. He stated that nothing happened to him; he helped his parents in their business, looked after his daughter and tried to earn money over a period of 18 months. The Tribunal would expect that, in the event the applicant was of adverse interest to the authorities on the basis of a drug profile, they would have taken action against him. They did not. On this basis, the Tribunal finds the applicant did not face serious harm or significant harm on return to Vietnam in July 2012 due to a drug related profile.

9. The Tribunal accepts the applicant’s wife was arrested on [date] January 2015 and convicted on [date] April 2016 of ‘[charges deleted]’. The Tribunal accepts the applicant’s wife received a prison sentence of nine months, and as she had been detained for 15 months on remand, she was released.  

10. It is claimed the applicant’s drug related profile will be exacerbated by his wife’s conviction and that his circumstances are now more serious because of this association.

11. The applicant’s wife told the Tribunal that neither the Vietnamese authorities nor anyone else knew of her convictions or her husband’s conviction. However, it has been submitted that it is likely that the applicant’s conviction will come to the attention of the Vietnamese authorities. It is submitted that the Australian authorities would disclose the couple's convictions to the Vietnamese authorities in the process of their deportation to Vietnam.

12. As discussed with the applicant and his wife, in the event he did not return to Vietnam voluntarily, he would not be returning to Vietnam as a criminal returnee (or deportee – a process only applicable to Australian permanent residents), but as someone who no longer has a valid visa to remain in Australia, as was the case on his last return. On this basis, processes applicable to non-residents whose visas were cancelled on grounds associated with their criminal behaviour would not apply to the applicant. The Tribunal does not accept the applicant’s conviction will be disclosed to the Vietnamese authorities as a part of a removal process. For the same reasons, the Tribunal does not accept the applicant’s wife’s conviction will be disclosed to the Vietnamese authorities as a part of a removal process.

13. On the evidence before it there is nothing to indicate that the applicant, who returned and lived without adverse interest from the authorities for 18 months before travelling again to Australia, was identified in any way by the Vietnamese authorities on return as a person who had a drug conviction or a “dealing with property suspected of being proceeds of crime” conviction against him. On this basis, the Tribunal does not accept that the applicant’s conviction came to the attention of the Vietnamese authorities on his removal in the past or that it would be disclosed to the authorities in any future removal process, involuntary or otherwise, as a person who does not have a valid visa to remain. On this basis, the Tribunal does not accept that the Australian authorities would disclose the applicant’s conviction, or his wife’s conviction, to the Vietnamese authorities in the process of their removal to Vietnam.

14. In support of the claim that the Australian government is likely to provide information about the applicant’s conviction to Vietnamese officials, it is submitted that Vietnamese officials were permitted to visit Yongah Hill Detention Centre in 2013 to interview Vietnamese asylum seekers who had arrived in Australia by boat. Extracts from a media report of this visit dated September 2013 is provided, and it is submitted that on this basis it is likely the applicant’s immigration detention in July 2012 and from January to April 2015, would have come to the attention of the Vietnamese authorities.[21]

    [21] R Sutton, 'Alarm over foreign officials in WA detention centre', SBS News, 13 September 2013, at

15. The Tribunal acknowledges the Australian government invited the representatives of the Vietnamese Immigration Department, known as A18, officially Office of Controlling Exit and Entry, to interview a number of detainees in 2013. However, in discussion at hearing, the Tribunal noted the applicant was not in detention at the time of the Vietnamese officials’ visit, and the Tribunal does not accept that this event in 2013 is relevant to the applicant’s circumstances, or that it is indicative that the Australian authorities will disclose to the Vietnamese authorities any matters concerning the applicant’s criminal or immigration history. The Tribunal does not accept the Australian authorities will disclose the applicant’s convictions or those of his wife to the Vietnamese authorities.

16. However, the Tribunal accepts the applicant and his wife have each been convicted in an open court and on this basis there is a chance the Vietnamese authorities may become aware of his and his wife’s offending given that it is a matter on the public record.

17. The Tribunal has considered how the applicant’s conviction would be regarded by the Vietnamese authorities in the event they became aware of it. The Tribunal notes the applicant was convicted for “[charges deleted]” and sentenced to 30 days in prison. The Tribunal considers such a sentence indicates that the Court in Australia considered the applicant’s offence to be minor. The Tribunal notes that penalties for drug offences in Vietnam are severe including the death penalty for some drug trafficking offences in Vietnam, suggesting that drug offences can be considered serious. However, the Tribunal has found no information to indicate the level of offending of the applicant will be regarded as serious, and as discussed further below returnees who have served time even for drug offences regarded as serious have not faced problems on return to Vietnam.[22] The Tribunal has reached the conclusion that the applicant’s offence, regarded as minor in Australia will be regarded as low level in Vietnam and will not confer upon him a profile as a medium level or serious offender.

    [22] DFAT Country Information Report No. 54/99, dated 25 February 1999, CX33942; DFAT Country Information Report No. 13/05, 7 February 2005, CX113467

18. The Tribunal has also considered how the applicant’s wife’s conviction would be regarded by the Vietnamese authorities in the event they became aware of it. The Tribunal notes she was convicted for [a] drug related crime, for which she was sentenced to nine months in prison. The Tribunal considers such a sentence indicates that the Court in Australia considered the applicant’s offence to be serious, but it was considered at the low end of seriousness. The Tribunal notes that penalties for drug offences in Vietnam are severe including the death penalty for some drug trafficking offences, suggesting that drug offences can be considered serious. However, the Tribunal has found no information to indicate the level of offending of the applicant’s wife will be regarded as serious, and as discussed further below returnees who have served time even for drug offences regarded as serious have not faced problems on return to Vietnam.[23] Nor has the Tribunal found any information to suggest that the applicant’s association with a person of his wife’s profile will have any impact on the applicant. The Tribunal has reached the conclusion that the applicant’s wife’s offence, while it may be regarded somewhat more seriously in Vietnam than Australia, will not confer upon her a profile as a medium level or serious offender, or confer upon her husband a heightened adverse drug related profile. On the evidence before it, the Tribunal does not accept that the applicant will attract a higher level of scrutiny in any respects because he is a member of a couple who both have drug convictions.

    Consideration for/detention in a drug rehabilitation centre

    [23] DFAT Country Information Report No. 54/99, dated 25 February 1999, CX33942; DFAT Country Information Report No. 13/05, 7 February 2005, CX113467

19. Central to the applicant’s claim to have a well-founded fear of persecution or a real risk of significant harm from the Vietnamese authorities, is the claim that he will be detained in a drug rehabilitation centre. In considering whether there is a real chance or a real risk the applicant will be detained in a drug rehabilitation centre, the Tribunal has taken account of the following wide range of independent country information put to the applicant regarding arbitrary arrest and detention in detoxification/rehabilitation centres in Vietnam.

20. The Tribunal has had regard to the following DFAT advice, discussed with the applicant that:

    4.10 Vietnamese law allows the government to detain people without charge indefinitely under ‘national security’ provisions. There are credible reports of the government arresting and detaining individuals indefinitely, with activists across the country also being subject to administrative detention or house arrest. Access to legal representation is granted inconsistently, with people held on national security charges reporting irregular access to legal counsel and limited access to materials relevant to their legal defence.

    4.11 The United Nations Working Group on Arbitrary Detention has issued opinions finding around 30 cases where people are currently being arbitrarily detained in Vietnam. The Working Group recently adopted Opinion 33/2013 regarding the case of Le Quoc Quan, a human rights activist and blogger who had been sentenced to 30 months prison for tax evasion. The Working Group’s opinion declared that the ‘deprivation of liberty of Mr Le Quoc Quan is arbitrary, being in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights and Articles 9 and 14 of the International Covenant on Civil and Political Rights to which Vietnam is a party’. This opinion followed similar findings regarding four detainees in 2012 and seven detainees in 2011.

    4.12 Around 32,000 drug users are detained in administrative centres, without charge and with limited judicial involvement. Drug users reportedly spend an average of one to two years in these centres. There is a high rate of recidivism. Credible reports indicate that at the completion of their initial term, a second term of around two years is often arbitrarily imposed. There have been reports of harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The centres are often reported to be profitable for those managing them due to the forced labour practices. [24]

    Arbitrary arrest and detention, particularly for political activists, remained a serious problem. Authorities arrested and detained individuals on allegations of revealing state secrets, subversion, taking advantage of democratic freedoms to infringe upon the government’s interest, conducting propaganda against the state, undermining the unity of the state, and other crimes as a means to suppress political dissent and public advocacy.[25]

    [24] DFAT Country Information Report Vietnam, 31 August 2015, p. 16.

    [25] United States Department of State Country Reports on Human Rights Practices for 2016.

21. The Human Rights Watch World Report 2013: Vietnam, covering events of 2012, published on 31 January 2013, discussed with the applicant, states:

    Vietnamese law continues to authorize arbitrary “administrative detention” without trial. Under Ordinance 44 (2002) and Decree 76 (2003) persons deemed threats to national security or public order can be placed under house arrest, involuntarily committed to mental health institutions, or detained at “re-education” centers.[26]

    [26] Human Rights Watch, World Report 2013 (Events of 2012), 31 January 2013, at >

    The Tribunal has also considered information discussed with the applicant from a range of other sources concerning drug detention/rehabilitation centres. The United Kingdom Home Office: Vietnam country of origin information report of August 2013 referenced The Report of the Special Rapporteur, published on 4 June 2012, which stated:

    12.09… “There are two categories of rehabilitation centres: “05 centres” for FSWs [Female Sex Workers] and “06 centres” for PWUD [Persons Who Use Drugs]. During meetings with representatives of the Ministry of Labour, Invalids and Social Affairs, the Special Rapporteur learned that there are 183 rehabilitation centres with 46,000 detainees (also called “learners”). Between 2000 and 2010, approximately 309,000 people, including minors, had been detained. The stated purpose of these centres is to “improve [the] health, living and occupational skills” of detainees and to “construct their awareness about the value of the labour, and their responsibilities toward themselves and their communities”. In order to accomplish these goals, the centres employ variety of approaches: labour therapy, moral education and vocational training. As a part of labour therapy, detainees are forced to perform labour for little to no remuneration. While some treatment for communicable diseases, including HIV/AIDS and tuberculosis, is available in some of the centres, many centres do not possess adequate HIV/AIDS and tuberculosis prevention, treatment and care services.”[27]

    [27] United Kingdom Home Office, Vietnam: country of origin information report, 9 August 2013.

22. The United States Department of State Country Reports on Human Rights Practices for 2015: Vietnam, as discussed with the applicant, states:

    According to the law on administrative sanctions, authorities may confine drug users to “compulsory detoxification establishments” (previously referred to as “06” centers or “compulsory treatment institutions”). The law requires a judicial proceeding before sending any individual to a compulsory detoxification establishment [p.13].

    …

    While the country made progress in replacing administrative detention of drug users with judicial proceedings and referring HIV-positive patients for outpatient treatment, there were no official reported figures for access to HIV treatment or medication-assisted treatment for substance abuse disorders among detainees, most notably at compulsory detoxification centers. The country maintained a population of approximately 17,680 persons in the “06 center” system that, by MOLISA’s conservative estimate, had a high HIV-prevalence rate of 13 percent [p.48].[28]

    [28] United States Department of State, Country Reports on Human Rights Practices for 2015: Vietnam, p.13 and p.48.

1. The Tribunal also had regard to country information from the 2015 United States Department of State report provided to the Tribunal by the applicant:

   The government continued to confine drug users in "compulsory detoxification establishments" (also referred 10 as "06 centers"). A 2014 report published by the International Labor Rights Forum stated forced labor and mistreatment continued at 06 centers, including detainees forced to produce goods for private companies. During the year there was anecdotal evidence that forced labor continued to occur at some drug rehabilitation centers.[29]

   [29] United States Department of State, Country Reports on Human Rights Practices for 2015: Vietnam p. 53.

2. As discussed with the applicant, the Human Rights Watch have reported on drug detention centres in southern Vietnam where forced labour and other abuses occur.[30] The United Kingdom report cites an Integrated Regional Information Networks (IRIN) news article of 9 May 2011, also discussed with the applicant, which reported on drug treatment centres in Vietnam:

   More than 90 per cent of injecting drug users held at these centres relapse into drug addiction upon release, according to UNAIDS. Beneficiaries at the centres, which began opening in the mid-2000s, are supposed to receive counselling, health checks, and vocational training to assist recovery and prevent relapse. But according to health experts, employees are not trained to treat drug addiction, and the fear of being sent to the centres encourages drug users to go underground.‟ Further adding: When Vietnamese heroin addicts leave compulsory treatment centres, they face a “palpable and substantial” societal stigma against drug use, said Robert Ali of the World Health Organization‟s (WHO) Collaborating Centre for Research into the Treatment of Drug and Alcohol Problems. Vietnam has made significant drug policy reforms since the mid-1990s, but most Vietnamese citizens and officials still see drug addiction as a “moral weakness” or “social evil” rather than a medical disease with a social dimension, Ali said.[31]

   [30] Human Rights Watch, The Rehab Archipelago, 7 September 2011.

   [31] Compulsory drug treatment centres counterproductive, IRIN news, 9 May 2011 at

3. The Tribunal has also had regard to country information provided to the Tribunal by the applicant, which supports the country information discussed with the applicant at hearing that drug rehabilitation centres continue to operate, and sets out information about claimed human rights abuses faced by drug users in Vietnam, particularly in the form of forced rehabilitation, including information from Human Rights Watch concerning compulsory rehabilitation centres and their use under Vietnamese law, and describes human rights abuses, such as forced labour, occurring in these centres. A Human Rights Watch report from 2016, provided to the Tribunal by the applicant, discusses escapes from drug rehabilitation: 

   Why are people so desperate to flee "rehabilitation" in Vietnam? Official Vietnamese media gave one reason for this latest breakout: overcrowding. The center has a capacity for around 600 people, but the number of detainees prior to the escape was 1,481. The larger point is that these people shouldn't be in these centers in the first place. When we researched conditions ill drug detention centers in southern Vietnam former detainees told us they were held without due process for up to five years, and subject to beatings by guards or held in solitary confinement in. "disciplinary rooms" for breaking center rules. Not one of them described any form of scientifically or medically-appropriate drug dependency treatment.[32]

   [32] R Pearshouse, “Vietnamese Drug Users Make A Break For Freedom,”  Human Rights Watch, 25 October 2016, at

4. Having regard to the advice cited above, the Tribunal accepts that arbitrary arrest and detention continues in Vietnam as a means to suppress political dissent and public advocacy. The Tribunal accepts arbitrary arrest and detention continues particularly for people perceived to be political activists, or a risk to national security or public order, including people who reveal state secrets, are involved in subversion or take advantage of democratic freedoms or any other activity that undermines the government and the unity of the state. The Tribunal also accepts the Vietnamese authorities run a number of drug detoxification/rehabilitation centres where people are held under administrative detention and where there is the capacity to detain people arbitrarily and/or without due process. The Tribunal has considered whether the information before it supports the conclusion that there is a real chance or real risk the applicant will be arbitrarily detained in this way. 

5. The Tribunal has considered whether the applicant has a profile of a person who does not support the Vietnamese authorities, or a person who holds opposition or dissident or activist views. At hearing, the applicant was hesitant and vague in response to enquiries about his political opinion, stating that he has been in Australia for a long time and he now has different views about the political system in Vietnam. He stated that he does not like the way authorities treat people. He could not provide any further details and said only that he “finds it is not suitable.” He stated that there are lots of problems that people are not allowed to talk about, for example the poisonous nature of the sea. However, he told the Tribunal that he is not engaged in any political activity himself, and said that honestly (the political situation) doesn’t affect him at all currently, but if his family have to live in a country like that they would be very disadvantaged.

6. In submissions, it is suggested that the applicant faces serious or significant harm because there is a lack of political freedom in Vietnam. On the evidence before the Tribunal, the applicant has not at any time expressed dissident views or conducted himself in a manner that could be construed as implying political dissent or activism. Further, the Tribunal has conducted extensive research including research of reports produced by DFAT, the United States Department of State, United Kingdom Foreign and Commonwealth Office, Human Rights Watch and Amnesty International, and on the evidence before it, the Tribunal does not accept the applicant’s minor, old, drug-related offence will be perceived as expression or evidence of dissenting political views. Nor does the Tribunal accept that the applicant has an adverse political profile on cumulative grounds as a person with a drug related criminal conviction who left Vietnam illegally or who has an association with someone who also left Vietnam illegally and also has a relatively low level drug related conviction, as a political activist or a person who is a threat to national security or a threat in any other respect. The Tribunal assesses the chance the applicant will be of any adverse interest to the authorities of a kind that might lead to arbitrary detention in any facility is remote. The Tribunal does not accept the applicant will be arbitrarily detained in any facility, including a detoxification facility arising from his actual or imputed political opinion.

7. The Tribunal has had regard to the abundant country information above testifying to the harsh and abusive treatment of drug users incarcerated in drug rehabilitation centres. The Tribunal had regard to DFAT advice above that 32,000 drug users are detained in administrative centres without charge and limited judicial involvement and that there are reports of harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The Tribunal has considered whether there is a real chance or a real risk that the applicant will be subject to such treatment.

8. As discussed with the applicant at hearing, all the information before the Tribunal indicates that while processes for detention may be arbitrary in that they do not have a judicial base, on the evidence before it the purpose of drug detention centres is to hold drug users for detoxification and rehabilitation. As found above the applicant is not a drug user. On the evidence before it, the Tribunal does not accept the applicant will be detained as a drug user. The Tribunal enquired about the basis of the applicant’s claimed belief he will be arbitrarily, or through a judicial process, detained in a drug detoxification/rehabilitation centre. The applicant told the Tribunal that he could not think of a reason why the authorities would use detoxification /rehabilitation centres for people who were not drug users.

9. It is submitted that on the basis of a profile as a person who is perceived as having committed a number of political and moral vices, including departing Vietnam unlawfully and applying for asylum, a profile he shares with his wife, as well as being part of a couple with a history of offending and drug use, the risk the applicant would be perceived to be a drug user and person of interest to the authorities is enhanced. The Tribunal finds for the reasons above and below that the applicant does not have a real chance of serious harm or a real risk of significant harm on the basis that he is a convicted criminal/drug criminal, an asylum seeker, a person who left Vietnam unlawfully or a person who shares these characteristics with his wife or any combination of these for political or any other reason. On all the evidence before it, the Tribunal further finds that none of these characteristics provide the applicant with a profile such that there is more than a remote chance he will be detained in a drug detoxification/rehabilitation centre.

10. For the reasons given above, the Tribunal does not accept the Vietnamese authorities will consider the applicant for a drug detoxification/rehabilitation centre. On the evidence before it, the Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from the authorities who would detain the applicant for drug detoxification/rehabilitation on return to Vietnam.

11. As discussed above, the Tribunal considers that the applicant’s claim he will be detained in a drug rehabilitation centre because he may relapse into drug use in the future is purely speculative. The Tribunal does not accept the applicant will be detained in a drug rehabilitation centre because, on the basis of the reasons and findings above, he will not relapse drug use in the future. The Tribunal finds the applicant does not have a well-founded fear of persecution or a real risk of significant harm for this reason.

    Referral for consideration for drug rehabilitation by the applicant’s wife’s family

12. The Tribunal has had regard to information submitted by the applicant that reports confirm that people can be sent to rehabilitation centres by their families. On the evidence cited above the Tribunal accepts that non-government agents such as families can refer citizens for consideration for drug rehabilitation. However, as discussed above, the Tribunal does not accept the applicant’s wife’s family will seek to manipulate the authorities to the conclusion that the applicant is a drug user to secure his detention in a drug rehabilitation centre. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm on this basis.

    Detention in drug detoxification/rehabilitation centre as punitive measure in response to the applicant’s Australian criminal history

13. The Tribunal has considered whether the applicant has a well-founded fear of persecution or a real risk of significant harm on return to Vietnam arising from his criminal history/association with the drug trade, his arrest on [date] June 2012 leading to his conviction, for “[charges deleted]”.  It is claimed that the applicant and his wife face extreme scrutiny on any return to Vietnam, and that they are likely to be charged, investigated, considered for rehabilitation camps and detained in a detoxification centre because she has been convicted of a drug related crime in Australia.

14. As above, the Tribunal accepts the Vietnamese authorities run a number of drug rehabilitation centres where people are held under administrative detention and where there is the capacity to detain people without due process. The Tribunal has considered whether the information before it supports the conclusion that there is a real chance or real risk the applicant will face any punitive action including detention in a drug detoxification/rehabilitation centre, because he has been convicted of a drug related crime or for “dealing with property suspected of being proceeds of crime”.

15. At hearing, the applicant’s representative indicated that the applicant does not claim he faces being charged, retried or re-sentenced for offences conducted in Australia. As discussed with the applicant at the hearing, independent advice from DFAT indicates that there is no credible evidence that people who have committed crimes in Australia have been prosecuted in Vietnam on their return.[33] DFAT advice, put to the applicant, indicates that the Vietnamese Government’s policy is that returnees would not face further punishment for offences committed outside Vietnam and the Vietnamese Government follows this policy in practice.[34]  As discussed in the delegate’s decision record provided to the Tribunal by the applicant, when asked whether DFAT was aware of any other problems that a returnee who has been convicted and served time for a serious crime overseas, particularly drug offences, may face upon return to Vietnam, DFAT replied “Post is not aware of any such problems”.[35]  DFAT also stated that they had consulted US and Canadian Embassy colleagues who were not aware of any cases which would contradict this advice. Based on the evidence before it, and relying upon the country information set out above, the Tribunal finds that there is no real chance or real risk that the applicant will be questioned, prosecuted, charged, subject to imprisonment by the Vietnamese authorities because of his minor drug related conviction and his “dealing with property suspected of being proceeds of crime” conviction.

    [33] DFAT Country Information Report No. 54/99, dated 25 February 1999, CX33942; DFAT Country Information Report No. 13/05, 7 February 2005, CX113467.

    [34] DFAT Country Information Report No. 07/13, dated 1 February 2007, CX170139.

    [35] DFAT, “Return of a Vietnamese National with Criminal Conviction”, VNM 12377 15 September 2011.

16. The Tribunal has considered whether the applicant faces serious or significant harm on the basis of a perception that as a person associated with drug use and the drug trade in the past, as evidenced by his conviction, that he is currently associated with drug use or the drug trade, or that this profile heightens the applicant’s vulnerability to persecution or significant harm. On the basis of the DFAT advice cited above, that DFAT is not aware of any problems faced by returnees who have been convicted of drug offences overseas, the Tribunal does not accept that the applicant’s past drug use/association with the drug trade confers on the applicant a profile as a person who is perceived by the authorities as engaged in current drug use of association with the drug trade. On the basis of the country information before it, the Tribunal does not accept the applicant’s past association with drug use or the drug trade confer on him heightened vulnerability to serious or significant harm.  For this reason, the Tribunal finds the applicant does not have a well-founded fear of persecution resulting from his membership of a particular social group, “a person perceived by authorities to be associated with the drug trade or drug use.” For the same reasons, the Tribunal finds the applicant does not have a real risk of significant harm arising from a perception that the applicant is associated with drug use or the drug trade on the basis of his past drug profile.

17. The Tribunal has carefully considered the available country information to assess whether the applicant has a real chance or a real risk of being subject to any other punitive action in relation to the fact that he has been convicted for a minor drug related offence in Australia and served a 30 day prison sentence here, in particular whether he faces detention in a drug detoxification/rehabilitation centre. Despite extensive research, including research of reports produced by DFAT, the United States Department of State, United Kingdom Foreign and Commonwealth Office, Human Rights Watch and Amnesty International, the Tribunal found no specific country information regarding treatment of persons with a criminal history. The Tribunal has not found any information that would indicate that people who were involved in minor drug offence, but are not addicts, are sent to drug rehabilitation centres in Vietnam.

18. The Tribunal does not accept that there is a real chance that the applicant will face any punitive action arising from his criminal history in Australia if he returns to Vietnam now or in the foreseeable future. The Tribunal finds the applicant does not have a well-founded fear of persecution for this reason. The Tribunal further finds there are not substantial grounds for believing that there is a real risk that the applicant faces significant harm on this basis.

19. The Tribunal finds, based on the evidence before it and relying upon the advice from DFAT set out above, that there is no real risk that the applicant will be prosecuted, charged, subject to imprisonment, the death penalty or any other form of punitive action by the Vietnamese authorities because he has been convicted of a drug related crime in Australia or because of his “dealing with property suspected of being proceeds of crime” conviction. The Tribunal does not accept the applicant’s convictions for criminal offences have created sur place refugee claims.  Further, the Tribunal does not accept the applicant will be interned arbitrarily on account of his minor criminal history. It follows therefore that the Tribunal does not accept the applicant will be separated from his wife or children or be subject to serious or significant harm for this reason. The Tribunal finds the applicant does not have a well-founded fear of persecution for this reason. On the same 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, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined.

    The applicant’s record with police authorities in Vietnam

20. At the second Tribunal hearing, the applicant claimed that since arrival in Australia in 2014 he had received a summons for a gambling offence committed in Vietnam, and he produced what appeared to be a summons dated March 2014 for an offence. The applicant was vague in response to further enquiries about the nature of this matter but he told the Tribunal this was a small offence and that he did not remember when he received the document because he had so many things on his mind at the time. In response to the Tribunal’s enquiries why the applicant had not raised this at an earlier time, he said that this was a very minor offence and indicated that he therefore considered it was not relevant to his protection claims. The applicant’s representative also stated that this matter was not put forward earlier because it was not considered apposite to the applicant’s claims for protection.

21. On the evidence of the applicant, the Tribunal accepts he has received a summons for a minor gambling offence in Vietnam. On the evidence before it, the Tribunal considers that this summons occurred as a result of the enforcement of generally applicable gambling laws in Vietnam. It is well established that enforcement of generally applicable law does not ordinarily constitute persecution for refugee purposes, for the reason that enforcement of such a law does not ordinarily constitute discrimination. ^[36] The applicant has not claimed and nor is there any evidence before the Tribunal that would support a finding that gambling laws operated in a discriminatory way for any of the reasons identified in s.5J(1)(a) of the Act or was enforced selectively against the applicant for any reason identified in s.5J(1)(a). As the Tribunal considers the laws applying to gambling are laws of general application, the Tribunal does not accept that the enforcement of this law against the applicant would constitute persecution for the purposes of s.5J of the Act.

    [36] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; and Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].

1. Taking into account the applicant’s circumstances and giving weight to DFAT independent advice, that while some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security, the Tribunal finds the applicant will not be held for anything other than a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to investigating his use of false documents to depart Vietnam.

2. Regarding the issue of the applicant being questioned on return to Vietnam and subsequently fined for departing using another person’s documents, the Tribunal does not consider being questioned or having a fine imposed in these circumstances to be instances of serious harm as defined in s.5J(5) of the Act. The Tribunal notes the guidance of the High Court in MIBP v WZAPN[46] with respect to the issue of temporary detention. In reaching that conclusion, the Tribunal considers that the applicant will face a short period of questioning regarding the manner of his departure and time spent in Australia, on return to Vietnam, but does not accept he will be harmed during this questioning, as detailed in the country information. As discussed above the Tribunal does not accept that the applicant has physical or mental health vulnerabilities, and taking this into account, the Tribunal does not accept that exposure to questioning and short term detention amount to serious or significant harm. Furthermore the imposition of a fine for using fraudulent documents is under a law of general application and therefore does not constitute persecution for the purposes of s.5J of the Act. The Tribunal also finds that being questioned or having a fine imposed in these circumstances is a real risk faced by the population of the country generally and is not faced by the applicant personally. Accordingly, there is not taken to be a real risk that the applicant will suffer significant harm in Vietnam: s. 36(2B)(c) of the Act. The Tribunal also notes that the applicant stated that he is in touch with his parents virtually every day, and the Tribunal is satisfied that in the event the applicant does not have the means to pay this fine himself, his parents who own assets such as their house will assist him to pay any fine imposed. On the evidence before it, the Tribunal finds that the applicant will be able to pay any fine imposed arising from his use of another person’s documents.

   [46] MIBP v WZAPN; WZARV v MIBP [2015] HCA 22.

3. On the country information above, discussed with the applicant, the Tribunal accepts the applicant may be detained and interviewed in order to obtain information about his departure, but on the basis of the findings above, not due to other factors related to his accepted profile such as his criminal history, past drugs/drug use history or being a failed asylum seeker. Having regard to the non-exhaustive examples of serious harm in s.5J(5) of the Act, and the definition of significant harm in s. 36(2A) of the Act, the Tribunal has considered whether a brief detention and interview constitute serious or significant harm as defined. The Tribunal finds that a brief detention and interview do not constitute serious or significant harm as defined.

4. Based on the applicant’s individual circumstances and the independent country information before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution arising from the method of his or his wife’s travel to Australia now or in the foreseeable future on return to Vietnam. 

5. Based on the applicant’s individual circumstances and the independent country information before it, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that he will suffer significant harm because he, or his wife, departed Vietnam unlawfully.

   Human rights

6. The Tribunal has considered the submission that there is a lack of freedom in Vietnam. It is submitted that the Vietnamese government has cracked down on perceived dissent in the context of the recent Formosa disaster.  While the Tribunal acknowledges reports provided by the applicant suggest this may be so, on the basis of the vague and limited evidence of the applicant at hearing the Tribunal does not accept that the issue of human rights in Vietnam has been in the past or is currently a concern to the applicant. Given the opportunity to discuss human rights concerns and explain how it is relevant to his situation, the applicant provided no detail as to this aspect of his claims. The applicant has not claimed to have had any political or social interests curtailed by the authorities in Vietnam in the past, and could not detail what concerns he might have in the future, although he stated that he was concerned about the effect of pollution on the [industry]. The Tribunal considers the applicant’s vague and limited response is because the human rights situation in Vietnam has had no effect on him. The Tribunal finds that the applicant does not have a well-founded fear of persecution or a real risk of significant harm for this reason.

   Economic factors

7. The Tribunal has considered the claim that the applicant faces poor economic prospects and financial difficulties in Vietnam. It is submitted that the applicant and his family will be unable to survive in Vietnam because the area where the applicant’s family resides [is] polluted with chemicals, negatively affecting the family’s ability to earn a livelihood. The applicant told the Tribunal that his family business [had] been affected [and] that his parents had sold their [business]. He stated that when he returned in 2012 the business was not going so [well].

8. The applicant also told the Tribunal that when he returned to Vietnam in 2012 he inherited some assets from his [grandfather]; that he possessed a house but sold this property in order to come to Australia. The applicant also stated that his parents used to have a number of assets but these have dwindled following economic setbacks associated with the downturn in [their] industry as well as paying for his student visa and school fees. He stated they have closed the business and moved to another location where they have their own home. On the consistent evidence of the applicant, and having regard to country information provided to the Tribunal by the applicant, the Tribunal accepts the applicant’s parents closed their [business].

9. The Tribunal discussed with the applicant DFAT country information dated 31 August 2015, indicating that although the economic growth rate of 7.5 per cent in 2007 has slowed somewhat, it remains steady at 5.7 per cent and that this growth has driven a large reduction in poverty.[47] As put to the applicant, DFAT advice states:

   This economic growth performance has driven a large reduction in poverty rates and led to Vietnam achieving lower middle income country status in 2009, with per capita income levels rising to over USD 2,000 by the end of 2014. Extreme poverty rates in Vietnam have fallen from 63.8 per cent in 1993 to 2.4 per cent in 2012.[48]

   [47] DFAT Country Information Report Vietnam, 31 August 2015.

   [48] DFAT Country Information Report, Vietnam, 31 August 2015, p.4

10. In response, the applicant stated he is worried he may not be able to find a suitable job and life will go downhill. He suggested that under the current regime talented people are not used properly and that only people with high positions in society are rewarded with good positions.

11. The Tribunal accepts the applicant may not have economic opportunities in Vietnam commensurate with those in Australia. However, the Tribunal notes the applicant’s evidence that he completed Year 12 and has some university education in Vietnam. On his own evidence he is in sound health and on the evidence before it the Tribunal considers he will be able to find employment of some kind in Vietnam. Noting the relevant country information regarding Vietnam’s generally positive economic performance, the Tribunal is satisfied the applicant will be able to obtain employment and support himself at a basic level in Vietnam. The Tribunal does not accept the country information indicates that he will not be able to support himself because he is not a person of high positon in Vietnam. In this respect the Tribunal also notes that he has the practical support of his family. The Tribunal has accepted that the applicant’s family’s economic circumstances have reduced somewhat in recent years, and he may not have the level of support he may have previously been able to expect, but notes his statement that his family have moved to a new home and based on the conduct of his family in providing him with support in the past, the Tribunal is satisfied the applicant will be able to obtain accommodation and support from them. 

12. In consideration of this claim, the Tribunal has also had regard to s.5J(1) of the Act that states that a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and must involve ‘serious harm’ to the applicant (s.5J(1)(b)), and systematic and discriminatory conduct (s.5J(1)(c)). The High Court has explained that persecution may be directed against a person as an individual or as a member of a group, and persecution implies an element of motivation on the part of those who persecute for the infliction of harm. The applicant claims to fear harm because his family’s economic prospects have been diminished because of pollution in the local seas and on the basis that the government do not reward people with talent only people with high positions in society. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from his economic circumstances on return to Vietnam because his concerns do not arise for one or more of the reasons enumerated in s.5J(1) of the Act - race, religion, nationality, membership of a particular social group or political opinion, or systematic and discriminatory conduct.

13. The Tribunal has also assessed this claim under the complementary protection criterion. Taking into account the circumstances of the applicant and the country information set out above, the Tribunal finds the applicant will be able to find employment in Vietnam and will receive practical support from his family. Having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal finds that any economic difficulties the applicant may suffer does not constitute significant harm to the applicant as exhaustively defined. 

14. The Tribunal has considered all of its findings of fact above, both individually and cumulatively, and finds that the applicant does not have a well-founded fear of persecution now or in the foreseeable future arising from his imputed political opinion due to his drug conviction, or because of his “dealing with property suspected of being proceeds of crime” conviction, or as a person who departed Vietnam unlawfully, sought asylum in Australia, as a returnee from another country, or due to his connection with his wife, or as a member of a particular social group as “a person perceived by authorities to be associated with the drug trade or drug use”; “a person who departed from Vietnam unlawfully”; and “a person who sought asylum in another country” or on any other grounds. 

15. Further, having regard to the findings of fact set out above both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.

    The applicant child

16. The Tribunal has considered whether the applicant child has a well-founded fear of persecution or a real risk of significant harm on return to Vietnam for any reason. The Tribunal has considered the claim that in the event the applicant is interned in a drug detoxification/rehabilitation centre for any reason, the applicant child would be separated from her father, and that this separation would amount to serious or significant harm.

17. The Tribunal has found above that there is not a real chance or real risk that the applicant will be charged, investigated, considered for rehabilitation camps or detained in a drug detoxification/rehabilitation centre as a drug user/person with a drug related criminal history/a person associated with his wife/ a person who departed Vietnam using a fraudulent passport/or a person who sought asylum in another country or for any reason. It follows that the Tribunal does not accept the applicant child will be separated from the applicant, his father. The Tribunal does not accept that the applicant child has a well-founded fear of persecution now or in the foreseeable future because she will be separated from her father who will be detained or interned. Further, the Tribunal finds there are not substantial grounds for believing that there is a real risk the applicant child will suffer significant harm upon return to Vietnam on this basis.

18. The Tribunal has considered the claim that the applicant child will be separated from her parents because her maternal grandparents will use legal or illegal means to gain custody of the child. The Tribunal has found above that the applicant child does not face kidnapping or any other mistreatment by her maternal grandparents. The Tribunal also notes that efforts by the applicant’s wife’s parents to obtain access to the applicant’s older child were not supported by authorities such as the school and police. The Tribunal also takes into account the applicant’s evidence that his wife’s parents have not made any attempt over a significant period to have access to the older child. The Tribunal also notes that the applicant child will be going to Vietnam in the care of both her parents. In all these circumstances, the Tribunal considers the chance or risk the applicant child’s maternal grandparents will separate the applicant child from her parents is remote. For this reason, the Tribunal does not accept there is a real chance or a real risk the applicant child will be separated from her father or mother by anyone or by any means on return to Vietnam. The Tribunal finds the applicant child does not have a well-founded fear of persecution or a real risk of significant harm on return to Vietnam on this basis.

19. The Tribunal has considered the claim that the applicant child has a well-founded fear of persecution or a real risk of significant harm as the child of a person who departed from Vietnam unlawfully, and/or a person who sought asylum in another country. On the evidence before it, the Tribunal accepts the applicant child has such a profile. However, the Tribunal has found above that the applicant’s father does not have an adverse profile on the basis of his profile as a failed asylum seeker and a person who departed Vietnam unlawfully, and that he does not have a well-founded fear of persecution or a real risk of significant harm for these reasons. Relying on the same reasons, the Tribunal does not accept that the applicant child will be conferred with an adverse profile as the child of a person who departed from Vietnam unlawfully, and/or a person who sought asylum in another country. It follows that the Tribunal does not accept the applicant child faces a well-founded fear of persecution or a real risk of significant harm as the child of a person who departed from Vietnam unlawfully, and/or a person who sought asylum in another country.

20. The Tribunal has considered whether the applicant child’s development will be affected as a result of the dislocation she would experience departing Australia, as a child born in Australia who is now [age] years old, and who has never visited Vietnam. The Tribunal finds these matters are not for one or more of the five reasons set out in s.5J(1) of the Act and do not involve systematic and discriminatory conduct. On this basis, the Tribunal finds the applicant child’s fear of persecution is not well-founded.

21. The Tribunal has also considered whether the applicant child has a real risk of significant harm for this reason. Having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal has considered the claim that return to Vietnam will result in dislocation for the child affecting her development. The Tribunal accepts the applicant child may experience some initial difficulties adjusting to life in Vietnam. However, the Tribunal considers that the applicant child will have the emotional and practical support of her parents and extended family in Vietnam and that while the applicant child will have to make adjustments and this may be challenging initially and have a low level impact on her development in the short term, that such implications of adjustment do not constitute significant harm as exhaustively defined.

22. The Tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds that the applicant child does not have a real chance of serious harm now or in the foreseeable future for any reason. The Tribunal does not accept the applicant child has a well-founded fear of persecution resulting from her membership of a particular social group, as “a child of a person perceived by authorities to be associated with the drug trade or drug use”; “a child of a person who departed from Vietnam unlawfully”; or a “a person who sought asylum in another country.” The applicant child’s fear of persecution is not well founded.

23. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not substantial grounds for believing that there is a real risk the applicant child will suffer significant harm on return to Vietnam.

    CONCLUSION

24. Having considered the applicants’ claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).

25. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa). Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that the either of the applicants will suffer significant harm.  The Tribunal therefore is not satisfied that the either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criteria in s.36(2).

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Amanda Paxton
    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.

    …

    
    

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Citations

1514487 (Refugee) [2018] AATA 490

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

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

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

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