1515645 (Refugee)

[2017] AATA 20

1515645 (Refugee) [2017] AATA 20 (6 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515645

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Carolyn Wilson

DATE:6 January 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 06 January 2017 at 3:08pm

CATCHWORDS

Refugee – Protection visa – Vietnam – Religion – Catholic – Participated in protest – Sexual assault – Re-education classes

LEGISLATION

Migration Act 1958, s 65, s.36(2)(a), (aa), (b), (c), s 499, s 5(1)

Migration Regulations 1994, Schedule 2

CASES

SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49]
SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]
WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32]
WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013)
SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72]

SECONDARY MATERIAL
DFAT Country information Report Vietnam (31 August 2015)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. The applicant appeared before the Tribunal on 24 November 2016 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   RELEVANT LAW

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

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

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

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

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and claims

10. The applicant is a [age] year old woman from Vietnam.  She came to Australia in 2006 as a dependent of her [husband] who held a [temporary] visa.  The applicant held [temporary] visas until her last one ceased, and her most recent application for the [temporary] visa was refused. That refusal was affirmed by the then Migration Review Tribunal on 7 May 2014.  She has recently divorced her husband.

11. The applicant applied for the Protection visa [in] May 2014.  She claimed in the Form 866C that she was mistreated by the Vietnamese Government because she was a member of the Catholic Church and protested for human rights.  She claimed to fear being imprisoned on return.  In a statutory declaration dated [in] July 2014 she declared:

    ‘I was baptised as a member of the Catholic Church and taken by my parents to church regularly until I was about [age] or [age] years old.  Vietnam then officially became an atheist country under the communist government…

    ‘As time went by the government allowed the existence of some churches…

    ‘I continued to go to Church as I got older and found that I believed wholeheartedly in and supported the church doctrine…

    ‘My friends and neighbours in Vietnam knew that I was a staunch Christian and a Catholic but for the most part they were not concerned as they themselves were Buddhists or followed some other authorized religion.  Nevertheless my Christian commitment did become known to the police along with the activities of other Catholics in my neighbourhood.

    ‘In 2004 I went along to a prayer meeting at a private home.  At the meeting I met and spoke with [someone].  She asked whether or not I would be prepared to go with her to a public protest against the government’s suppression of religious activities…

    ‘To go along to a protest was very significant thing from my point of view but I did feel strongly that freedom of religion (and in particular the Catholic religion) was for the benefit of everyone in the community.  I committed myself to the protest as I thought that with so many people together in an intended peaceful demonstration there was not much to be anxious about.

    ‘On the day of the protest we met at [a] Church at about 9.00am for prayers.  There were about [number] people.  At 11.00am we moved away from the Church and started to walk along the streets holding placards and singing.

    ‘Our activities attracted the attention of the public…At about 12.00 noon we were confronted by the police (about [number] of them) who requested us to break the demonstration up and to go home.  Some of the more aggressive or emotional Church followers refused.  We all sat down on the ground.

    ‘Approximately 20 minutes after we sat down and refused to move, two police trucks appeared on the street and we were ordered to climb into the back of them.  Anyone who refused was physically forced to do so.

    ‘The truck which carried me drove for a period of about 15-20 minutes to a police building…

    ‘A government officer, not in uniform, spoke to me in a small room…I was taken to a another room which was more like a cell.  The interviewing officer told me that I was a good person and told me I would be allowed to go home provided I told him who had organized the demonstration and signed papers confirming that evidence.  I said I did not who had organized [it]…

    ‘I did not see the officer again until the next morning at about 10am.,,This time he told me his name was [Mr A]…

    ‘[Mr A] left and came back about 20 minutes later with another man.  They punched and kicked me and then raped me.  I begged them to stop and promised to sign the statement.

    ‘[Mr A] went away and came back with a pre-prepared statement which I signed without reading.  I also signed a document saying that I would attend a study group once a week to ‘cleanse my mind’.  I promised not to return to the Church.

    ‘I was allowed to leave the police station about 4.00pm on that day, after I had cleaned myself up.  I felt degraded and ashamed.  I could not bear to think about what had happened or to confide my humiliation to any other person.

    ‘As promised, I attended the study group once a week.  Approximately 3 weeks after I started, [Mr A] attended the meeting and gave a speech.  When that ended and everybody was about to leave he asked me to stay back.  I had no option but to do as he requested.  He took me to the rear of the building and again sexually assaulted me. 

    ‘[Mr A] told me my name was on the police register as an agitator and a subversive.  He and other police officers would keep an eye on me and speak to me every now and then.

    ‘Over the next 3 years [Mr A] and other police officers came to my house and questioned me.  When it was [Mr A] who came he would usually rape me.

    ‘I escaped from the situation when I came to Australia to join my husband. Within a couple of months of leaving Vietnam my parents told me that the police had come to their house looking for me. My parents told the officers that I had gone to Australia.

    ‘After that [Mr A] turned up at my parents’ house…with a letter to be passed on to me.

    ‘I received the letter from my parents and read it.  [Mr A] said that even if I had left Vietnam my name and details were on record and that I would be made to pay for any part in undermining the unity of the people of Vietnam.

    ‘My experiences in Vietnam following my open support of the Catholic Church and religious freedom makes me believe that [Mr A]’s threat must be taken seriously.  Over the years I have been raped, beaten, harassed, abused, followed and denigrated by government officers.  Their conduct has caused me serious psychological injury and to a lesser extent, physical harm.  I very much fear that this will occur again if I return to Vietnam.’

    Delegate’s decision

12. The applicant was interviewed by the delegate in September 2015.  In the delegate’s decision[1], it is recorded that the applicant said she was hit by a police officer whilst being detained, and then inappropriately touched and groped whilst being escorted out of the police station. This is significantly different from the account in her statement, in which she claimed she was raped by [police] officers during questioning.  She also told the delegate she was inappropriately touched by [Mr A] only when she attended two courses, after which time she stopped going.  This is significantly different to the written statement in which she claimed to have been repeatedly raped by [Mr A] at her home over a three year period.  

    [1] A copy of the delegate’s decision was provided to the Tribunal by the applicant as part of her application for review.

13. The delegate accepted the applicant was a Catholic from [City 1] who had attended one protest.  The delegate accepted the applicant was detained and questioned by police for one day.  However, given the significant inconsistencies between her written claims and oral evidence, the delegate did not accept the applicant was seriously harmed by a police officer called [Mr A].  The delegate found the local police had no interest In the applicant, given she was never pursued when she moved to [another city] after she married in 2005 and that she was able to obtain a passport and depart Vietnam without difficulty. 

    Application for review

14. The applicant attended the hearing alone and provided the Tribunal with documents relating to her recent divorce.  When asked the relevance of these to her protection claims, the applicant said she had been the victim of domestic violence and was looking to the Australian authorities to protect her from her ex-husband.  The Tribunal explained the purpose of a Protection visa was to protect people from persecution or significant harm in their home country, not from harm they feared in Australia.  She said she was a woman in need of protection both in Australia and in Vietnam, where she feared to return.

15. The Tribunal asked the applicant about discrepancies between her written statement and the information she gave the delegate at the interview.  The applicant said whatever she told the delegate and the Tribunal is correct.  A community member helped her to prepare the statement, and she is not sure of everything that is contained in it.  Wherever there are inconsistencies, her oral evidence is the correct evidence.

16. The Tribunal observed the applicant was visibly distressed whenever talking about being returned to Vietnam.  The Tribunal notes the applicant has not been back to Vietnam since arriving in Australia in 2006.  Her decision never to accompany her ex-husband and the children, who have returned several times to Vietnam in the last 10 years, is consistent with her stated fear or returning. The applicant told the Tribunal she fears returning to Vietnam not only because she fears [Mr A] may harm her again, or that she may be of interest to the authorities for her past protest activity, but because she fears returning to a place where she was traumatised. 

17. After taking oral evidence from the applicant, the Tribunal accepts the applicant attended a protest as claimed, and was subsequently questioned by police and ordered to attend re-education classes.  The Tribunal accepts she was inappropriately touched, and probably sexually assaulted, by a police officer both at the police station and when she attended the mandatory classes.  The Tribunal accepts the applicant attended two classes, but then did not attend the third and final class because of her fear of a police officer named [Mr A].  The applicant confirmed there were no adverse consequences for her decision to stop attending.  The applicant confirmed she was never assaulted by [Mr A] at her home. 

18. The applicant claimed that as a Catholic she has a well-founded fear of persecution in Vietnam.  The DFAT Country information Report Vietnam (31 August 2015) provides the following information on the situation for Catholics in Vietnam:

    3.15 Article 24 of the Constitution allows citizens to enjoy freedom of belief and religion, and to follow any religion or none. It also states that all religions are equal before the law, and that no one may ‘misuse beliefs and religions to contravene the law and State policies’. The Penal Code 1999 includes penalties for offenses such as ‘Undermining the unity policy … [through promoting] division between religious believers and nonbelievers’.

    3.16 The government implements a registration process for religious organisations, with an approval process managed by the Committee on Religious Affairs (CRA). Under the government’s ‘Decree 92’ of January 2013, religious organisations may be registered if they can demonstrate that they have operated for 20 years within Vietnam without violation of Vietnamese law. They are also required to commit to upholding government regulations and to ensure their activities support the ability of the state to maintain public order. There are 38 registered religious organisations affiliated with 13 officially recognised religions, including Buddhism, Christianity, Islam, Judaism, Cao Dai, and Hoa Hao. Registered clergy may conduct religious education in approved religious facilities. Most recognised religions in Vietnam also have one or more groups that are not recognised or registered.

    3.17 The government maintains a dedicated police force for monitoring the activities and networks of religious organisations in Vietnam. The force is responsible to the Ministry of Public Security and sets and administers policies for the enforcement of state law against non-registered religious groups who are perceived by the Government of Vietnam to threaten national stability.

    3.18 In practice, the authorities’ treatment of religious activity varies across

    Vietnam, particularly for unregistered organisations. Groups that are under surveillance for alleged separatist activities may find administrators more likely to apply more stringent measures, including surveillance and harassment of public religious gatherings.

    3.19 Broadly speaking, DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam—which can be broadly defined and include land use issues—religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. There may, however, be restrictions on some activities and the freedom of individuals to travel outside of Vietnam to attend religious festivals and events. There are credible reports of restrictions on the activities of some unregistered groups, including allegations of violence and harassment, which are discussed in more detail in following sections. DFAT is not aware of credible claims of societal abuse or systemic discrimination based on religious practices. Authorities are, however, concerned about the potential for religious groups to be mobilised for political purposes.

    …

    3.22 The Catholic Church is registered in Vietnam and in recent years has had some restrictions on charitable activities lifted. A number of new church congregations were approved in 2013, mostly in the Central and Northwest Highlands areas in response to increased demand from the growing Catholic communities in the area, although many more registration requests are still pending.

    3.23 Members of independent Catholic groups opposed to government policies have been subject to harassment by authorities. While exact numbers are unavailable, reliable sources suggest that over 30 activists associated with Catholic churches have been arrested since 2011 (out of an estimated Catholic population of approximately 6.5 million). While some have been charged with ‘crimes against the State’, others are yet to be formally charged. According to the 2013 US State Department’s International Religious Freedom report, in July 2013 police forcibly removed a group of Catholics who had been praying in front of a church in Ho Chi Minh City, having travelled from other provinces to worship after land and property had

    allegedly been seized by local authorities. Several members of the group reportedly required hospitalisation after being beaten by police.

    3.24 Nonetheless, DFAT assesses that Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference.

19. The applicant claims to be a life-long member of the Catholic Church.  She has provided evidence from the Church she has attended in Australia, which demonstrates she continues o practice her Catholic religion. The Tribunal accepts the applicant would practice her religion should she return to Vietnam.

20. The Tribunal acknowledges the country information indicates a level of restriction on religious freedom in Vietnam.  The Tribunal notes however that the government generally respects the registered religions, and that Catholicism is a registered religion in Vietnam.  The Tribunal finds the applicant would be free to practice her religion upon return to Vietnam as she did in the past. That is, regularly attend and participate in her church, including as a member of the choir.

21. The applicant does not claim to be a leader in her church or an activist for Catholic rights.  She attended one protest in the past.  She has not been involved in any political or religious activist activity since that time in Vietnam, or in Australia.  She has expressed no intention to get involved in religious activism should she return to Vietnam, and this is consistent with her lack of engagement with religious activism to date. 

1. The Tribunal does not accept the police had an ongoing interest in the applicant.  The applicant claimed, in the written statement, the police came to her parents’ home after she left to find out where she was, and that [Mr A] gave a letter to them to pass on to her.  The letter has not been provided to the Department or Tribunal. The Tribunal considers this an embellishment of her claims. However, even if the claim was accepted, on the applicant’s evidence [Mr A] last enquired about her in around 2007. The Tribunal also gives weight to a police clearance the applicant provided to the Department dated [in] August 2015 which states the applicant has ‘no criminal record’ (f.84).  The Tribunal considers this as evidence the police have no reason to be interested in the applicant.

2. The Tribunal also does not accept a predatory police officer in [City 1] would continue to be interested in the applicant.  The Tribunal considers his assaults on the applicant were opportunistic, and he is likely to have turned his attention to other women in Vietnam since that time.  The Tribunal considers the chance of [Mr A] having ongoing interest in finding and harming the applicant, 12 year after he last assaulted her, to be too remote to amount to a real chance.

3. The applicant has claimed her name is on the police record as an agitator and subversive person.  The Tribunal does not accept this is the case.  The applicant was never pursued by the police after failing to attend her third re-education class.  The applicant remained in Vietnam for more than 2 years after this time. She relocated without issue to her husband’s home area.  During this time she returned to her home city on occasion. She applied for a passport and this was granted, She departed the country legally.  The Tribunal finds that were she recorded as an agitator she would have been monitored, prevented from moving, and prevented from leaving Vietnam.  The Tribunal finds this claim is an embellishment.  If the applicant subjectively believes it, the Tribunal finds it is an unsubstantiated fear that has no objective basis.

4. For these reasons, whilst the Tribunal accepts the applicant is a Catholic who was detained and mistreated by police after attending a protest in 2004, the Tribunal does not accept she has a profile such that she would be of interest to the authorities should she return.  The Tribunal finds she is an ordinary Catholic who attended one protest, and who would be able to practice her religion as she has done in the past.  The Tribunal finds her fear of again suffering sexual assault in Vietnam is mere speculation, and does not accept the police officer who previously assaulter her has an ongoing interest in finding her.  The Tribunal finds she does not have a well-founded fear of persecution for reason of her religion or actual or imputed political opinion, should she return to Vietnam in the reasonably foreseeable future. 

   Complementary Protection

5. The Tribunal has considered whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam. 

6. The applicant claimed to fear imprisonment in her written claims.  For the reasons given above, the Tribunal does not accept the applicant is of adverse interest to the Vietnamese authorities, and finds the risk of her being imprisoned for protest activity or failing to attend a re-education class in 2004 is too farfetched to amount to a real risk.  The Tribunal makes this finding based on the lack of follow up by the authorities when she stopped attending the re-education classes, her ability to relocate in Vietnam when she married without adverse attention from local authorities, her ability to apply for a passport and depart Vietnam, and her having left Vietnam legally such that she will not be under any extra scrutiny upon return. 

7. The applicant spoke at the hearing of fearing returning to Vietnam not only because she feared being the victim of sexual assault again, but because she feared being traumatised by returning to a country where she had previously suffered assault.

8. In relation to the applicant’s first fear, of again suffering sexual assault, the Tribunal finds this is mere speculation and finds there are not substantial grounds for believing there is a real risk of such harm should the applicant be returned to Vietnam. 

9. In relation to her second fear, the harm of feeling traumatised by being returned to the country where she suffered past harm, the Tribunal finds such harm does not fall within the definition of ‘significant harm’. 'Significant harm' is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.  These definitions include an element of intention: it must be an act or omission which causes and is intended to cause harm,

10. The harm the applicant fears is psychological harm caused by being returned from Australia to Vietnam.  The Tribunal does not accept the act in returning the applicant to Vietnam will satisfy the definition of 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment', or 'torture'. The Federal Court found that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[2]

    [2]          SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm.

11. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk she will suffer significant harm.  The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).

    Conclusion

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

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

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

    DECISION

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

    Carolyn Wilson
    Member