1608348 (Refugee)

[2019] AATA 4030

1608348 (Refugee) [2019] AATA 4030 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608348

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Christopher Smolicz

DATE:17 January 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 17 January 2019 at 9:42am

CATCHWORDS

REFUGEE – protection visa – Vietnam – Complementary Protection – fear of violence from business competitor – attacks on farm – land resumption – police corruption – actions against the Communist government – alleged illegal departure – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235

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 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 28 October 2013 and the delegate refused to grant the visas on 8 May 2016.

3. The applicants appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from [name], the first named applicant’s sister in Vietnam.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

   BACKGROUND - EFFECT OF PRIOR APPLICATIONS FOR PROTECTION

6. The applicants are husband and wife. On 12 July 2010 they were granted a [temporary] [visa] and lawfully arrived in Australia [in] September 2010. They travelled to Australia as holders of validly issued Vietnamese passports.

7. They applied for Protection visas (the first protection visa application) on 1 December 2010.

8. The first named applicant (the applicant) declared that he owned a successful [company] in Vietnam. In May 2010 one of his managers quit and opened a company doing the same business and took many of his customers. The applicant said he was threatened by strangers and told to stop his business. The strangers followed him and his life was threatened. He realised his ex-manager was behind this. He fled to Australia with his wife.

9. On 10 May 2011 a delegate of the Minister for Immigration and Border Protection found that the applicant’s claims were neither convention-related nor well-founded, referring among other things to country information suggesting that the Vietnamese authorities would provide protection for the applicant from such harm.

10. The applicants sought review of this refusal at the Refugee Review Tribunal (RRT). On 5 August 2011 the RRT affirmed the Department’s decision. The RRT found that the applicant’s claims were not Convention-related and there was no genuine and well-founded fear of persecution.

11. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused.  However, s.48A does not prevent a person from making a further application for a Protection visa on complementary protection grounds where the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012.[1] As a result, the applicants were not prevented from making a second application for a Protection visa on 28 October 2013. 

    [1] SZGIZ v MIAC (2013) 212 FCR 235. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

12. The Tribunal must therefore consider the applicants’ second application for Protection visas having regard to the “complementary protection” criteria. 

    RELEVANT LAW

13. 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. As noted above, in the present case, the refugee criterion is not relevant in relation to any of the applicants in the present matter.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s.36(2)(a), he may nevertheless meet the criteria for the grant of a Protection visa if he 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 will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if he will be arbitrarily deprived of his 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.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

18. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations.

    Section 438 certificate

19. As a preliminary issue the Tribunal notes that there is a certificate issued by a delegate of the Minister under s.438 of the Act located on the Department’s file which have been provided to the Tribunal.

20. Section 438 permits the Minister to certify that the disclosure of information may be contrary to the public interest for any reason specified in the certificate: “that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”.

21. In summary the Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal has formed the view that the certificate is valid. The Tribunal explained to the applicant that the documents subject of the certificate are internal Departmental working documents which are not relevant to this application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm.

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

    Summary of substantive claims before the Tribunal

24. Only the applicant submitted his own claim for protection (form 866C). The second named applicant completed form 866D and did not make her own claims for protection and is relying on her membership of his family unit.

25. The applicant said that he operated a [farm] business in Vietnam. In 2010 one of his managers quit the job, set up a competing business and stole many of the applicant’s clients.

26. The ex-manager belonged to a family with political connections and many of his relatives were communists during the Vietnam War.

27. In July 2010 a suspicious fire burnt out his office; however he was able to rebuild and continue his business. A few weeks later, some strangers threatened him that his life would be in danger if he did not give up his business. He claims that he knew his ex-manager was behind the threat so that he could get rid of him and dominate the market. The applicant said that he refused to quit the business. He claims he was followed by the same strangers. He claims these people were close friends of his ex-manager and they were people with a “communist political background”. He feared that they would harm him or his wife.

28. His house was also burnt and the [farming areas] were poisoned. He and his family were threatened with violence and bodily harm. His family members have been banned from working on his [farm]. He feared they would harm him or his wife and fled to Australia.

29. The applicant made the following new claims which were not part of the first protection visa application. He claims that the “local police security department” have accused him of illegally escaping overseas to act against the Communist government. He states that this is not true and he would never do anything against the Communist government in Vietnam.

30. He fears harm from the ex-manager who wants to keep him from competing with his business. He claims the ex-manager has teamed up with the local public security officers. The local government and local public security officers in Vietnam are very powerful and would not protect him if they knew he applied for a Protection visa in Australia.

31. He claims the local security officers threatened to put him in jail for acting against the Communist government if he returned to Vietnam.

32. The applicants provided the Tribunal with a copy of the delegate’s decision which provides particulars of the applicant’s first protection visa application. Specifically, the delegate noted that the applicant’s second protection visa application raises new claims which were not previously raised by the applicant. The delegate also had regard to the country information regarding the prevalence of document fraud in Vietnam. The delegate did not accept the applicant’s claim that he was being targeted by the local police and wanted for illegally departing overseas.

    Tribunal hearing

33. The Tribunal questioned the applicant about his [business] in Vietnam. The applicant said in about May 2010 the subcontractors working for him in the business were stealing [stock], poisoning his [farming areas] and causing problems. He reported them to the police. The police accepted that the [stock] were poisoned but said they could not do anything because there was no evidence to prove that the subcontractors were responsible.

34. He suspects the subcontractors were released because they came from a family with political connections. The subcontractors returned and threatened him and his wife. He claims that soon after he came to Australia the local authorities took some of his land away. He travelled to Australia with his wife and his brother continued to look after the [farm]. He planned to return to Vietnam after about three months but his brother continued to experience problems with the subcontractors.

35. After further questioning and being prompted by the Tribunal the applicant said that he also had problems with his former manager who was also a partner in the business. He claims the partner has connections with the local authorities and has tried to take his land away. The applicant said that he did not previously mention that the partner/ex-manager had political connections because he did not know at the time.

36. The applicant said he has been accused of committing a crime by the local authorities because they have alleged that he has fled to Australia and is working with other organisations to overthrow the government. The applicant said that he has not engaged in any such conduct in Australia.

37. He claims the authorities took a second property in 2013 because his ownership papers were burnt in the house fire. The Tribunal noted that he did not mention anything about his property being taken by the authorities when he applied for the second Protection visa. The applicant said the land was only taken after he lodged his second protection visa application.

38. The Tribunal asked the applicant why the authorities would be interested in him. The applicant said that many of his relatives fled Vietnam by boat many years ago and the authorities have always seen him as a potential person who could take action against Vietnam.

39. The Tribunal questioned the applicant about his interaction with the authorities in Vietnam. The applicant said when he was a young boy his family tried to flee Vietnam and they were captured and detained. He never mentioned it before because he did not think it was relevant because he was about [age range] old at the time (about [specified year]). He was following his brother who fled Vietnam and travelled to Australia. The applicant said that his brother now lived in Australia. The Tribunal questioned the applicant if his brother had returned to Vietnam. The applicant said that his brother travels back to Vietnam every year.

40. The Tribunal referred the applicant to his statement and the protection visa application (question 44) where he claims the local public security officers accused him of illegally escaping overseas. The Tribunal noted that his claim is inconsistent with the fact that he legally departed Vietnam by plane using a validly issued Vietnamese passport.

41. The Tribunal told the applicant it was surprised that since he arrived in Australia he has approached the Vietnamese authorities in 2018 and obtained a new Vietnamese passport. His conduct does not seem to be consistent with a person who fears the Vietnamese authorities. The applicant said that the passport was issued by the Vietnamese [authorities in Australia] and that is different from Vietnam.

42. The Tribunal took evidence by telephone at the hearing from the applicant’s sister ([named]). [She] confirmed that the applicant had a dispute with the subcontractors and had to leave Vietnam. She claimed that the applicant has been accused of acting against the Vietnamese government. The Tribunal noted that the applicant had left Vietnam about eight years ago. The Tribunal asked [the applicant’s sister] why he subcontractors would still want to harm the applicant. [She] said that they still cause trouble and their relatives died for fighting for the revolution in Vietnam.

    Findings

43. The Tribunal finds some aspects of the applicant’s evidence at the hearing regarding the problems associated with his [farming] business inconsistent. For example, in his written claims the applicant did not mention problems with subcontractors and he did not mention that his land had been taken by the authorities.

44. The Tribunal is however prepared to accept that the applicant was the owner of [farming] business in Vietnam. The Tribunal accepts that in 2010 the applicant encountered problems associated with the business. His subcontractors were stealing [stock] and poisoning his [farming areas] and he reported their conduct to the police. The police could not take action because there was insufficient evidence. The Tribunal also accepts that his former manager or managers may have started up a rival [farming] business. The Tribunal accepts that the applicant was threatened by people who wanted him to cease operating his [business] and his home and office were burnt in a suspicious fire. The Tribunal accepts that the applicant’s ex-manager may have been behind these actions because he wanted the applicant to cease his business operation.

45. In assessing the applicant’s claims the Tribunal finds that the problems encountered by the applicant associated with his subcontractors and/or manager were criminal in nature and occurred over eight years ago.

46. The Tribunal finds the applicant’s claim that the subcontractors and/or his former manager/s were people with connections to the Communist party who carried political influence in Vietnam vague and lacking in credibility. The Tribunal does not accept that the subcontractors and/or his former manager/s were using their political connections/influence to prevent the applicant from obtaining police protection. The Tribunal finds that the applicant did report the conduct to the police but they were prevented from taking any further action because there was a lack of evidence. The Tribunal does not accept that the applicant has been accused by the Vietnamese authorities of escaping to Australia and engaging in conduct to bring down the Communist regime. The Tribunal notes that the applicant did not provided any evidence about the subcontractors and/or his former manager/s having political connections in his first protection visa application. The Tribunal notes the applicant has admitted that he has never engaged in anti-Vietnamese government conduct in Australia or Vietnam. He is not a political activist. The Tribunal finds that it was only after his first protection visa application was refused that the applicant introduced these new claims.

47. Having regard to the finding above, the Tribunal finds that the applicant is not a person of interest to the Vietnamese authorities. The Tribunal does not accept the Invitation Cards [summons] dated [in] December 2011 and [in] February 2013 purportedly issued by the [Police Station 1] in Vietnam are genuine.

48. The Tribunal notes that the applicant was able to apply for a Vietnamese passport and travelled to Australia in October 2007 and again in September 2010 and did not experience any problems with the Vietnamese authorities.

49. The Tribunal notes that country information indicates that some limits have been imposed by the Vietnamese authorities on freedom of movement for persons with a dissident profile. For example, advice provided by DFAT indicated that requirements for exit and entry visas for Vietnamese nationals were removed in March 2000, and that control procedures have since relied on passport issuance and screening against blacklists at the point of departure:

    Ministry of Public Security (Immigration) controls procedures for Vietnamese nationals exiting Vietnam. This is done through both passport issuance and screening at border exit points. To obtain a passport, a Vietnamese national must lodge Form TK1, with photo attached, and his/her ID and household registration documents at the local (ie, city or provincial) immigration department. Once he/she has obtained a passport, it can be used to exit the country. He/she will be screened against ‘black lists’ held at border points (in a manner similar to procedures used by other countries).[2]

    [2] DIMIA Country Information Service, Country Information Report No. not yet allocated/04 – Exit Visas for Vietnamese Nationals (sourced from DFAT advice of 13 September 2004), 14 September 2004.

1. The Tribunal finds that the only problem the applicant has experienced with the Vietnamese authorities was around [specified year] when he was a young boy who was apprehended by the authorities when his family were attempting to flee Vietnam. The Tribunal does not accept that this incident has imputed the applicant with an anti-government political profile. As stated above, the Tribunal finds that the applicant was able to obtain a Vietnamese passport and legally depart Vietnam on two occasions which would suggest he is not on a watch list and is not a person of interest to the authorities.

2. The Tribunal has also had regard to the applicant’s evidence that his brother fled Vietnam and travelled to Australia. The Tribunal does not accept that because of his brother’s profile the applicant would be a person of interest to the Vietnamese authorities. In making this finding the Tribunal notes that the applicant gave evidence that his brother travels regularly to Vietnam. There was no evidence that his brother experiences any problems from the authorities when he enters and departs Vietnam. The applicant did not provide any further evidence about his brother’s profile with the authorities in Vietnam.

3. The Tribunal has also had regard to the applicant’s profile in circumstances where he will be returning to Vietnam after spending over eight years living in Australia. The Tribunal notes that Vietnamese nationals residing overseas are referred to as Viet Kieu. A 2010 working paper describes the Vietnamese government’s 2004 formal guiding principles “for all governing bodies to follow when creating new policy toward the Viet Kieu”. Two of these principles are non-discrimination against “any past history or current status of the overseas community as long as they share the goals of nation building and promoting the growth of Vietnam”; and respect for the rights of overseas Vietnamese, while “encouraging them to promote Vietnamese culture and tradition”.[3]

   [3] Pham, A T 2010, The Returning Diaspora: Analyzing overseas Vietnamese (Viet Kieu) Contributions toward Vietnam’s Economic Growth, DEPOCEN, Working Paper Series No. 2011/20, 27 November, pp. 17, 18, >

   The Tribunal finds that the applicant does not have an adverse profile with the Vietnamese authorities because he was apprehended by the authorities around [specified year] or because his brother fled Vietnam or because of the time he has spent in Australia.

4. The Tribunal has also considered the applicant’s evidence that his land has been taken by the authorities in Vietnam since he arrived in Australia. The Tribunal found the applicant’s evidence about the circumstances in which his land was taken vague and lacking in detail. When questioned at the hearing he said that he lost legal documents in a fire which proved his association with the land. The Tribunal notes that the applicant first raised this evidence at the hearing and it is not referred to in any of the statements provided by the applicant’s family members. The applicant was unable to explain how the confiscation of land was relevant to his claims. The Tribunal does not accept the land was taken by the authorities as retribution or to prevent him from engaging in his business. The Tribunal notes that his sister is still living on the [farm]. The Tribunal does not accept that the authorities took any of the applicant’s land in Vietnam.

5. The applicant gave evidence that he has not been involved in politics in Vietnam. He is not a member of any political party in Vietnam. The Tribunal finds that the applicant has no political profile and is not a political activist. The Tribunal does not accept that the applicant will be imputed with an anti-Vietnamese government political opinion because his family escaped from Vietnam.

   Documents from Vietnam

6. On 19 February 2014 the applicants’ migration agent provided the Department with copies of the following documents purporting to be from Vietnam:[4]

   ·     “Invitation Card” dated [in] December 2011 purportedly issued by [Station 1] Police department in Vietnam. The summons is requesting the applicant’s brother ([named]) to attend the police station to discuss the applicant’s disappearance.

   ·     “Invitation Card” dated [in] February 2013 purportedly issued by [Station 1] Police department in Vietnam addressed to the applicant’s mother ([named]). According to the summons the police want to question her about the applicant’s anti-government conduct abroad.

   ·     Letter dated 10 October 2011 purportedly written by [the applicant’s brother] to the applicant.

   ·     Letter dated 9 November 2012 purportedly written by [the applicant’s sister] to the applicant.

   [4] The Tribunal notes that the same Vietnamese documents were provided to the Tribunal prior to the hearing, however two different translations have been provided of the same documents.

7. The Tribunal discussed the documents with the applicant at the hearing. The Tribunal has a number of concerns about the documents.

8. The Tribunal is concerned that the documents were only provided to the Department in February 2014. The agent did not provide an explanation as to why the documents were not provided earlier or how they came to be in the applicant’s possession.

9. The Tribunal finds that the letters are addressed to the applicant in Australia and therefore would have been known to him before he lodged the second protection visa application in October 2013. 

10. The Tribunal has had regard to the content of the letters and finds them to be vague and lacking in detail.

11. For example, [the applicant’s sister] claims in her letter that she became aware the local authorities were bribed by the people who were trying to cause the applicant harm. She claims that “according to my knowledge the local government had concluded that you [the applicant] were the betrayer of the country due to implementing the meeting order of the police and escaping overseas and protesting them”. It is surprising that the applicant’s sister would be making such claims over two years after the applicant departed Vietnam. It is unclear what enquiries [the applicant’s sister] made and how she became aware of this information. As stated above, the applicant has not engaged in any anti-government conduct in Australia.

12. Both letters allege that the police are seeking the applicant because he disobeyed their order and did not appear in the local police office but escaped illegally. As stated above the applicant did not escape Vietnam illegally. The applicant’s statement of claim makes no reference to him disobeying police orders.

13. The Tribunal does not accept the letters were actually written on 10 October 2011 and 9 November 2012 as claimed. The Tribunal finds the letters were specifically drafted for the purpose of the protection visa application. The Tribunal finds the letters are not objective and contain false information about the harm the applicant fears in Vietnam. The Tribunal has placed no weight on this evidence.

14. The Tribunal has also considered the Invitation Cards. The Tribunal has the following concerns about this evidence and does not accept that the Invitation Cards are genuine documents.

15. The Invitation Cards suggest that the police in Vietnam questioned the applicant’s brother [in] December 2011 about his (the applicant’s) disappearance and questioned his mother [in] February 2013 about the applicant engaging in anti-government conduct abroad. The Tribunal finds it surprising that the applicant would be provided with copies of the Invitation Cards from Vietnam but no correspondence or statements have been provided by the brother or mother addressing the Invitation Cards and their dealings with the police.

16. The Tribunal finds it unusual that the first Invitation Card was issued to the applicant’s brother over one year after the applicant departed Vietnam and the second card was issued almost two and half years after the applicant departed Vietnam. The Tribunal is concerned that the applicant did not mention this evidence in his protection visa application and the documents were only provided to the Department by the agent in February 2014.

17. As detailed above the Tribunal does not accept that the applicant is a person of interest to the authorities in Vietnam. He did not escape from Vietnam illegally. He has not engaged in anti-government conduct. It therefore seems illogical that the police in Vietnam would seek to speak to his family about his “disappearance” and his anti-government conduct abroad.

18. In assessing the weight the Tribunal gives to the Invitation Cards, the Tribunal has also had regard to DFAT advice that document fraud is common in Vietnam. In conclusion, having considered the applicant’s evidence, his profile, the content of the documents and delay in their production, the Tribunal finds that the documents are not genuine.

19. As discussed above the Tribunal accepts the applicant had problems with his subcontractors and/or former manager and the subcontractors and/or former manager engaged in criminal conduct directed towards the applicant. The Tribunal finds that the purpose of the conduct was to steal produce, damage the applicant’s business and prevent him from competing in the market. He left Vietnam in September 2010. In the circumstances, the Tribunal does not accept that the subcontractors and/or ex-manager would have any further interest in the applicant or his family. The Tribunal does not accept that the applicant’s family have continued to experience problems from the subcontractors, ex-managers or ‘thugs’ since the applicant has been in Australia. The Tribunal notes that the applicant’s sister has continued to live on the [farm] and the applicant will be able to resume his farming activity when he returns to Vietnam in the future.

20. In the circumstances the Tribunal does not accept the subcontractors and/or ex-manager or any of their ‘thugs’ would seek the assistance of the police to frame and intimidate the applicant in circumstances where he had left Vietnam and was no longer operating the business.

21. Having assessed the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam there is a real risk that they will suffer significant harm.

    State protection in Vietnam

22. Country information available to the Tribunal states that internal security is the responsibility of the Ministry of Public Security. There are police organisations at the provincial, district and commune (local) levels over which people’s committees exercise some authority.[5] There are two core forces: the People’s Security Force (An ninh Nhan dan), responsible for national security, and the People’s Police Force (Canh sat Nhan dan), which is responsible for social order and public safety.[6] The People’s Police force handles traditional police work such as neighbourhood policing, traffic control, household registration, and the issuing of identification cards.[7] Police are effective in maintaining public order but have limited capacity in other areas, especially investigations. While the Ministry of Public Security is responsible for internal security and controls the national police, in practice, provincial and local-level police often maintain significant discretion in their activities.[8]

    [5] ‘Public Insecurity: Deaths in Custody and Police Brutality in Vietnam’, Human Rights Watch, 16 September 2014, CISA447F082797, p.14.  

    [6] ‘Public Insecurity: Deaths in Custody and Police Brutality in Vietnam’, Human Rights Watch, 16 September 2014, CISA447F082797, p.14.  

    [7] ‘Public Insecurity: Deaths in Custody and Police Brutality in Vietnam’, Human Rights Watch, 16 September 2014, CISA447F082797, pp. 5-8.  

    [8] ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, OGD95BE927332, pp.6-7.  

23. As detailed above the Tribunal finds that the applicant was able to report the conduct of his subcontractor/managers to the police in Vietnam. The Tribunal does not accept the applicant’s claim that the police did not take action because subcontractors/managers had connections to the Communist party in Vietnam. As detailed in the delegate’s decision this evidence was never provided in his first protection visa application.

24. The Tribunal has had regard to the country information detailed above, the applicant’s profile and personal circumstances in Vietnam and finds that he and his wife will have access to state protection in Vietnam.

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

26. 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. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.

    DECISION

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

    Christopher Smolicz
    Member