1612118 (Refugee)

1612118 (Refugee) [2017] AATA 3074 (14 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612118
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Michael Hawkins
DATE:14 December 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 December 2017 at 2:21pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Social group – Supporter of Anti-communist blog sites – Victim of immigration fraud – Failed asylum seeker – Returnee from the West – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 189(1), 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] June 2016. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, and nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk the applicant will suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes 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.
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.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [age] year old man from the province of Khanh Hoa, Vietnam.
The applicant is of the Christian faith, is of Vietnamese ethnicity and speaks Vietnamese.
The applicant is single.
The applicant’s parents and brother lived in Khanh Hoa, Vietnam, though the applicant claims to not know where they presently live.
The applicant completed his primary and high school education (to [grade]) in Khanh Hoa, Vietnam, from September 1998 to June 2010 inclusive.
The applicant stated in his application that he had not completed military training in Vietnam, but his claims suggest he has completed service.
The applicant’s current employment status is unemployed. He has previously worked in [Occupation 1] and as [Occupation 2] since being in Australia.
The applicant was granted a Class SI subclass 189 Skilled Independent visa [in] March 2014 which was valid until [March] 2019.
The applicant arrived in Australia [in] March 2014 under passport [number], issued [in] 2014 and expiring [in] 2024.
The applicant’s Class SI subclass 189 Skilled Independent visa was cancelled due to providing false information on the application.
The applicant remained unlawful from [November] 2015 until apprehended by police during [an] incident. The applicant was then detained under s.189(1) of the Act at [a centre].
The applicant applied for a protection visa [in] June 2016.
The applicant attended an interview with the delegate [in] July 2016.
Claims:
The applicant claims are contained in a number of Statutory Declarations.
Statutory Declaration dated [in] June 2016.
Since I was very young I had strong views against the Vietnamese Communist regime. My father always talked about the corruption of officials and how they harass him for bribes. He was living under pressure and his business was severely affected by having to pay bribes to corrupt officials every month.
In Communist Vietnam, freedom from expression is severely limited. Authorities send young people to monitor bloggers and people who view blog sites. I hate to see how it monitors people's behaviour. How it tried to control the freedoms of people. As a young person I could not stand how the Vietnamese authorities controlled the young people and their access to true information.
I began using internet to view anti-communist blog sites. I was a regular visitor of one such blog called "[Website 1]" I was also a friend of the Web site founders Facebook page. I was also following several blog creators. I wanted to create my own blog one day. I was passionate about empowering young people to know about their rights and freedoms.
In September 2013, I was visited by plain clothed policemen in a [location]. The police arrested me and taken into the police station for interrogation. They asked what interne activities I was involved in. They also questioned about the blog creators I was following. From that moment, I knew that I was being monitored and subject to their surveillance.
I then decided to escape from Vietnam. I was so fearful of my safety. I then decided to look for a way to get visa to come to Australia.
Around mid-October 2013 I met a "friend" online who promised that he would help me to find a job in Australia. He promised me that if I paid the amount he asked for, I would be able to go to Australia soon. We met couple of times to discuss my application.
He asked for $[amount] to get my Australian visa. I agreed as I was desperate to escape from Vietnam. I sold all our properties and assets to collect money to pay for my visa.
I then handed over all my documents to him. Due to lack of my English I did not know the requirements of my visa or criteria that is applicable to my visa. I knew that it is a work visa that will permit me to work in Australia.
My visa application was lodged by my friend through an agent [in] February 2014. My visa was granted [in] March 2014. I was delighted to have a work visa. I arrived in Australia [in] March 2014.
It was an opportunity to run away from the corrupt Vietnamese regime. I have been suffering along with my family all my life in Vietnam.
The visa was for an indefinite period and had no conditions attached to it.
Since my arrival, I lived at [Address 1], [Suburb 1] in [an Australian State]. My Vietnamese friend organised my accommodation.
I then began to work in various places as [Occupation 1] and [Occupation 2]. I had many hopes and dreams of a new life in Australia.
However, my visa was cancelled [in] November 2015. I realised that my visa was fraudulently obtained by my friend and his agent. I was inadvertently involved in an immigration fraud.
I now know that my work visa was obtained for the occupation of [an occupation] and incorrect information was also given regarding my English and Educational qualifications.
I am a victim of fraud. I am now aware that I have become an innocent victim in one of the largest immigration scams in Australia. That scam was well published and the officer who granted my visa went to jail for 8 months for his involvement of the scam (please refer to the case officer who signed as [Mr A] in my visa grant letter).
I am now aware that the corrupt immigration official who assisted my migration is [Mr A], a [nationality] born and he has been sentenced to eight months' jail for receiving bribes from Vietnam. [Mr A] is from [a suburb] which is a nearby suburb to [Suburb 1].
The Vietnamese authorities are now fully aware of the immigration fraud. In November 2015, the District Court of [Australian City 1] convicted [Mr A] for the scam I was allegedly involved in. He was sentenced to eight month's jail for secretly receiving $[amount] in bribes between May 2013 and April 2014. Most of this money came from Vietnamese people including myself. The details of this case was published in Vietnamese and other immigration web sites and [a] newspaper.
[Mr A] has been living in [a suburb] at the time of his arrest. I have also been living in a close proximity to his residence in [Suburb 1]. Even if I did not know anything about the Australian fraudster, my living in a close proximity to him would raise further suspicions of my involvement in the scam.
I fear that the authorities would have ample evidence to punish me for everything I have done. My attempt to escape from Vietnam would be seen as very suspicious. My detention in Australia and "immigration fraud" would be sufficient for them to put me in jail. I am well aware that Australian Detention Centre statistics have been given to the Vietnamese authorities.
Therefore, I fear that the Vietnamese authorities would put me in jail for my immigration fraud. They would not believe that I am an innocent victim of fraud. The officials would punish me as if I was a part of the Vietnamese scam. I am very fearful of imprisonment. In Vietnam, jail sentence is a life imprisonment. People are kept in jail for long time. In some instances, people were put in pre-trial detention for more than 20 years.
In Vietnam, the police use brutal tactics to obtain information from people. I believe that my friend in Vietnam was an immigration fraudster. The authorities would not allow me to prove my innocence. It would be difficult for me to prove that I was not involved in the scam.
I fear that I would be punished and put in jail for an indefinite time. In Vietnam, prisoners are kept in jail for indefinite periods of time. Vietnamese police and jail are very famous for bad practices. Their interrogation techniques are notorious. I could be beaten and even be killed during investigation. I fear for my safety. I do not want to be victimised twice for an offence I have not committed.
The applicant’s claims were further explained in his representatives submission of 20 September 2016 as follows:
The blogger of the banned blog site “[Website 1]” was convicted in March 2016 and received an extraordinarily long jail sentence. He was convicted on a charge of abusing democratic freedoms to infringe on the interests of the state under Article 258 of the Penal Code.
The applicant claims to fear that given his circumstances, both as a person accused of immigration fraud, and a person who supported [Website 1], he would be subjected to lengthy prison terms upon return.
That submission was accompanied by a further Statutory Declaration that was unsigned and undated which included:
The immediate reason for my departure from Vietnam was my fear of persecution from Vietnamese uthorities.
I feared that I would be arrested for visiting anti-communist blog sites which were banned by the Vietnamese government.
The delegate of the Department had issues with the credibility of my claim.
I was very fearful of facing the protection visa interview. I never thought that I would have to claim protection from Australia. I came to live and work in Australia for an indefinite period. The mere thought of having to respond to questions from authorities brought back my bad experiences with Vietnamese authorities.
I became very nervous at the protection visa interview. When I was questioned about the "[Website 1]" blog site visit, I got very frightened and I said my statement of claims may not be correct. At that stage, I began to deny every claim I made on my statements to the Department. If I was in a good mental state I would not have denied all the claims I have made. I state that the claims in my statutory declarations are true.
Upon realising my difficulties, my agent advised the delegate that I was not in a good state of mind. However, I was not given another opportunity to give evidence. The delegate said that I admitted to be in good health at the beginning of interview (please refer to paragraph 2, page 8 of the decision record).
I had no pre-existing medical condition. During the questioning, I suffered an emotional breakdown and I got very nervous and scared and I felt as if I was facing interrogation at a Vietnamese police station.
As a result of my denial of claims, my application was refused. The delegate did not believe that I would be punished upon return as I had not experienced any problems from authorities in Vietnam. I am now forced to return to Vietnam.
I fear that I would be punished and put in jail for an indefinite time. In Vietnam, prisoners are kept in jail for indefinite periods of time. Vietnamese police and jail are very famous for bad practices. Their interrogation techniques are notorious. I could be beaten and even be killed during investigation. I fear for my safety. I do not want to be victimised twice for an offence I have not committed.
I therefore respectfully request the Tribunal to consider my claims and remit my matter to the Department for reconsideration.
In a further Statement dated [in] May 2017, the applicant set out his claims in more detail:
My name is [Applicant’s name]. I was born [in date] in Cam Ranh in Vietnam.
In Vietnam, I lived with my father, [my] mother, [and] my [brother]. My parents are farmers. When I was young, my father often talked to us about the corruption of Vietnamese officials, as they harassed him for bribes. As I got older, I found Vietnamese society to be unfair and repressive. I was also concerned about why the government wanted to limit people's access to true information.
As a result of luck and my interest in the area, I found a web community that was anti-Communist community called [Website 1]. I joined in the middle of 2012 when I was doing compulsory military [service]. When I was in the army, I would escape for a few hours to get onto the intemet to speak to friends. On one of these days, I accidentally saw an image of normal citizens being beaten by security personnel. The people were bleeding and injured. This started me thinking seriously about the situation in Vietnam. I commented on this image, something like, 'this would only happen under this Communist government'. After this, a friend referred me to [Website 1].
You have to have an account to post on [Website 1] and to do this you provide your details. I followed the website and found out more and more about what was happening in Vietnam. Later, I posted images myself of photographs some internet friends and had taken and given to me of the police physically abusing people. My friends wanted to keep their personal details confidential. They gave the photos to me because I said that I didn't care what happened to me, not thinking I would actually be hurt. We wanted to make people aware of the situation. At that time, I did not realise the full danger of what I was doing — I thought it was the right thing. I posted over quite a few photos and videos. One was a short video clip in which the police were beating people, including women. Elderly people were crying. The government had sought to acquire their land at a very low price and they resisted. Another photo showed a traffic policeman obtaining bribes. I would post these with comment, like 'look to see how the Vietnamese government treats their people'. I would receive responses from within the [Website 1] community, swearing about the Vietnamese government.
I often visited [Website 1] and joined their activities. I did this through Facebook and elsewhere
too. I did not use my real name. I used [Name 1], and then that Facebook account was locked, and [Name 2] I have used for about one year now. I think my [Name 1] account was locked because of my activities. I was a friend of the founder of [Website 1] on Facebook, [and] I followed several of the blog creators. I participated in the discussions online. On the forum, I spoke about the protests, and about the problems in the country.
I do not know how, but I was detected by the authorities. In September 2013, I was sitting in [a] shop when undercover policemen took me to the police station. They asked about my activities on the website. They threatened me. They said that if I did not tell them the truth, they have the way to get the information. I told them the name of the blog and the name of the blog owner. When I was asked about my activity, I said I did not do anything. I denied everything. I said I was not against the government. They released me but I believe they continued to monitor me because my army training assisted me to detect these things, I was extremely afraid and I deleted what I had posted immediately afterwards. I could tell that they did not believe me.
I was shocked by what happened and extremely afraid. I felt I was going to be imprisoned, tortured or killed. I cannot describe this feeling.
At that time, I became desperate to escape from Vietnam, and a friend through the internet in the same political community told me about an agent who could help me to find a job in Australia. I was told it would cost $[amount]. It was very expensive, but I thought it was necessary for me to find this money. My family sold their land and I borrowed a great deal of money any way I could. I owe about $[amount] to people including loan sharks, I was desperate, and I thought I would be able to repay them once I had the job.
I only met the agent in person to pay the money in cash and give my documents. The agent was Vietnamese. I told him about my circumstances: that I was being followed and needed to escape, He told me that there was a job I could do in Australia. He said that I was eligible if I was able to pay, He told me about other people who had done the same thing, and I looked at information on the intemet and believed that there was a Work visa to Australia. I trusted him. I knew I was being watched by security personnel and I was very afraid. I did not understand the details of the visa, but the agent told me it was a legitimate visa and I believed him.
My family had to sell our home to fund my escape and, after I left, they moved elsewhere in Cam Ranh. Since I left, people from whom I borrowed money contact my family to try to get the money back. They say I have cheated them and put pressure on my family to sell their current. They feel scared and may have to sell our land because they do not know what to do. The land is quite small and would not cover my debts. I feel very nervous, insecure and frightened about this situation. I think that if I return to Vietnam without paying they will hurt me very badly.
I came to Australia [in] March 2014 on what I fully believed was a legitimate permanent visa. I have later found out that it was not, and that the agent lied to me.
I only found out my visa had been cancelled when I was detained by police in May 2016. I did not have the opportunity to respond to the cancellation of that visa.
[In] June 2016, I applied for a Protection (subclass 866) visa. I applied for a Protection visa because I am very deeply against the Communist government and because I fear harm because of my involvement with anti-Communist websites and now this immigration fraud.
It was refused, and I appealed the matter to the Administrative Appeals Tribunal I had a hearing in September 2016. I was in detention and I did not get to attend the Tribunal. At that time, I was held [in immigration detention]. It was very hard to give evidence [there]. At that time, I felt very afraid, and I felt that I did not get a proper hearing — it felt like I could not tell my story because of my circumstances. The image was not clear and I felt distance and as though I was not part of the hearing. I couldn't even tell if my agent was present.
I was in detention for about eight months. It was extremely hard. The shock and loss of freedom was very hard on me, I could not sleep and I felt very down and hopeless.
I find myself thinking very hard about my situation and feeling very depressed. I feel frustrated. I am so stressed that I do not want to talk to anybody.
Before I was detained, I lived in [City 1]. I was detained in [City 1] for nearly five months, I was also detained [in a location]. I did not know why I was transferred there, but I was there for nearly two months. I was told that I would be moved, but I did not know where. They woke me up at about 3.00am and at 6.00am they started to move me. They handcuffed me on the plane. They only undid the handcuffs when I arrived in [the location]. I was put in a room with a bed and a toilet and no walls, and the next day I was transferred to the compound.
Since being taken into detention I have not really spoken to my family. I have changed my Facebook so that the Vietnamese authorities cannot find out my details.
Since being in Australia, I have also developed my political views further. I have continued to be active online. I am a member of a number of political groups on Facebook and I regularly comment and make posts in those communities. I was involved a protest in [City 2] a few weeks ago. We protested against the government in Vietnam and the way they are treating their people. We raised the issue about the China Sea and the repression of protest and speech about that issue. If people protest in Vietnam, they are arrested and tortured, and I believe this is a significant breach of their human rights. Many people in Vietnam are tortured by the government. I believe that my country is ruled and controlled by China because otherwise Vietnamese people would never be treated this way.
I am also anti-Communist. I do not approve of the way the Communist government manages and treats their people. They are not interested in helping the people. They are corrupt. The people are powerless and vulnerable.
If I return to Vietnam, I will continue my political activity with renewed commitment, even though I now understand the dangers even more so. I think it is very important to fight and, resist the oppression and corruption of the Vietnamese government for the sake of the Vietnamese people and in the hope of getting rid of this government and making a better future.
I object to what is happening in Vietnam very strongly and deeply. I have expressed my views to many people. I speak about this on social media in particular with other Australian friends, because those in Vietnam cannot possibly say these things. I believe I will be seriously harmed on any return to Vietnam by the authorities as a result of my political views and how I departed Vietnam, particularly because I do not feel I can be silent about the wrongs that are occurring. I also fear harm from the people I borrowed money from in order to escape, and from the people who arranged my escape, given what I know now.
There is nowhere in Vietnam I can be safe and the authorities will not protect me, they will hurt me.
I need Australia's protection. I cannot give up my beliefs and allow the wrongs committed by the Vietnamese government to continue. I will not be permitted to express my views in Vietnam without being imprisoned, tortured, beaten or killed.

In a further submission from the applicant’s representative dated 29 October 2017, the representative submitted:
·The applicant fears he will be physically harmed by loan sharks to whom he owes around $[amount] which he borrowed prior to departing Vietnam.
·The loan sharks have visited his parents’ home on around 4 to 5 occasions and the last time they visited was around 4 months ago and threatened to come to their house and remove all their assets if they couldn’t repay the loan.
·Country information including references to two articles evidencing that loan sharks are operating and dangerous in Vietnam today.
·The applicant did not put forward the information earlier as the threats to himself and his family’s safety have only recently increased in severity.
·The applicant has continued to criticise the Vietnamese Government via comments online since arriving in Australia and claims that this contributes to his claims for fear of persecution based on his political opinion.
·This was not for the purpose of enhancing his claims, as he was posting such comments as early as only a few months after arriving in Australia which is when he held a subclass 189 visa and had no reason to bolster refugee claims at that time.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
§The applicant’s protection visa application form completed and signed [in] June 2016, lodged [in] June 2016 (“visa application”);
§The applicant’s identity documents being certified copy of a passport;
§The protection visa decision record (‘delegate’s decision record’) [of] August 2016;
§The review application form which included a copy of the delegate’s decision record;
§Statutory Declarations of the applicant dated 4 June 2016, unsigned and undated statement accompanying submission dated 20 September 2016, 25 May 2017 and submissions from the applicant’s representatives dated 20 September 2016, 24 May 2017 and 29 October 2017.
§Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Vietnam, published on 21 June 2017.
Country of reference / receiving country
The applicant claims to be a Vietnamese national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended the Tribunal on 27 September 2017 and 30 October 2017. He was accompanied by a friend as a support person. The hearing was assisted by an interpreter in the Vietnamese language. His representative accompanied him at the hearing.
The Tribunal opened the hearing by taking some time to discuss with the applicant the circumstances of how he came to be before the Tribunal this day.
The Tribunal broadly discussed the applicant’s visa applications, grants and cancellations and the dates of each of them. The Tribunal discussed the date of the making of his protection visa application, his interview with the department, the decision of the delegate and his applications for review to the Tribunal.
The Tribunal noted that during the interview with the department, the applicant appeared to have recanted all of the claims he had made. The applicant stated in his undated and unsigned statement that he felt unwell during the interview and had a nervous breakdown.
It was noted that the applicant had participated in a hearing with the Tribunal (differently constituted with Member Henry) on 27 September 2016, and that upon the application of his current representative, the Tribunal agreed to a new hearing which took place on 25 May 2017. In that hearing, the Tribunal (constituted as for the 27 September 2016 hearing) expressed its concerns that the applicant’s representative had only just received a copy of the files pursuant to its FOI application, and discussed the making of what appeared to it to be new claims. The Tribunal determined that it would be appropriate to adjourn the hearing to another day, and noting the date of such new hearing, advised that the matter would be reconstituted to another member.
The hearing date had been extended a couple of times, and that is how the applicant found himself before this Tribunal on this day.
The Tribunal asked the representative if she agreed with this account. The representative said she did.
The Tribunal asked the applicant what concerns he had had about the 27 September 2016 hearing. The representative replied that the hearing took place whilst he was in detention [in a location], that the interpretation services were not acceptable, and that the applicant was uncertain whether his representative was present for the hearing. The applicant added that he was worried that the evidence might not be kept confidential.
The Tribunal reminded the applicant that Member Henry had told him that his representative was not present and had confirmed with the applicant at the commencement of the hearing that he wouldn’t be at the hearing. Why would he now say, and say at the 31 May 2017 hearing, that he was uncertain whether the representative was present when it was clearly acknowledged by him that he wouldn’t be there. The applicant responded that it was a bad connection. The Tribunal noted that the recording of the hearing of all parties was very clear.
The Tribunal discussed with the applicant his background. The applicant said he had a [brother]. The Tribunal clarified that when the applicant stated in his application that he didn’t know the whereabouts of his family, he was not suggesting they had vanished. He said he still spoke to his parents and brother regularly – he just didn’t know their current address. He said his brother was helping on the farm. The farm was run by his parents and it harvested [produce]. It was in the same town, but in a different location.
The Tribunal asked the applicant about his military training. He said it started [in] September 2010. It last for nearly two years. It was compulsory service. The Tribunal asked about the nature of the service – what did he do. The applicant said he was forced to work, to help Vietnamese people. They worked as [labourers]. The Tribunal noted to the applicant that he had told Member Henry that he was a [worker] in the military. The applicant replied that he was rotated through duties. The Tribunal asked why he hadn’t mentioned that. He said he hadn’t been asked. On the matter of his military service, the Tribunal mentioned that the applicant had told Member Henry that his military service was 18 months. The applicant replied that he meant it was closer to two years. The Tribunal mentioned to the applicant that there were two questions on his protection visa application form that asked whether he had completed military service and he had answered “no” to both. The applicant said he didn’t think he had to disclose it. The Tribunal stated that the questions were very specific. The applicant said he didn’t think there were any such questions.
The Tribunal sought to clarify what the applicant did when he arrived in Australia. His application said he was self-employed as [Occupation 1] and as [Occupation 2]. The applicant said he worked for different people as [Occupation 1].
The Tribunal asked the applicant about the circumstances by which he came to seek a visa to Australia. The applicant stated that he had a friend involved in an anti-government group who he would talk to. He said he talked to that person about his anti-government activities and one day asked this friend if he knew how he could get out of Vietnam. The friend said he knew someone. A little while later, a person came to speak to the applicant about working overseas.
The Tribunal asked the applicant for the name of his friend. The applicant said he couldn’t remember his name as he had met him online.
The applicant told the Tribunal the person told him he could help find him a job overseas. The Tribunal asked for this person’s name as well. The applicant didn’t know this person either. This person suggested Australia.
The applicant went on to state that after arriving in Australia, he learned that the person had not kept their promise, as there was no job for him. He had to find a newspaper to find a job.
The Tribunal asked the applicant about his experience of arriving at the airport for the first time in Australia. What did he do? The applicant said that accommodation had been arranged for him, so he went to the accommodation.
The Tribunal asked the applicant about the visa application process. What did he have to do. The applicant said the person handed him paperwork to complete and told him he had to pay $[amount]. The Tribunal confirmed that was Australian dollars. The applicant stated that he had to complete those parts of the forms that needed answers in Vietnamese. He stated that he didn’t know how the rest of the forms were completed or by whom.
The Tribunal asked the applicant about how he paid the $[amount]. He said he had to pay $[amount] when he made the application and the balance at Saigon airport as he was leaving.
The Tribunal recapped the process with the applicant. The applicant had met someone online who’s name he couldn’t remember and discussed anti-government activities with him. This person then referred someone else to the applicant. Again, he didn’t know who this person was. This person recommended Australia to him and promised him a job in Australia. The applicant completed some forms for this person, only in Vietnamese, and paid this person $[amount]. The Tribunal asked the applicant how he could trust these people whose names he didn’t know. The applicant said that he had researched visas on line and knew that Australia had working visas. The applicant said that he was very afraid and this was the only way to flee the country.
The Tribunal asked again how he could trust a total stranger to pay him $[amount]. The Tribunal noted that the applicant had researched work visas in Australia and must have noticed how much such visas actually cost and that $[amount] was an extraordinary amount to pay. The applicant replied that he hadn’t paid much attention to how much a visa should cost.
The Tribunal said it would consider this further.
In the October hearing, the Tribunal asked the applicant again about the work visa application process. It reminded the applicant that his claims stated he had paid $[amount] for the visa and had told this Tribunal the same.
The Tribunal asked the applicant how he had managed to convert the cash to Australian Dollars. The Tribunal confirmed that A$[amount] is about [amount] Dong. The applicant agreed. He said it took him several visits to change the cash. The Tribunal asked whether that didn’t arouse suspicion – [amount] Dong was a lot of cash to change. He said it wasn’t. The Tribunal confirmed that the applicant had told it he made the payments in two payments of $[amount] each. One up front and one at the airport. The Tribunal reminded the applicant that he had told the delegate that he had paid $[amount] for the visa, and he had told Member Henry last year that he paid $[amount] as the first payment and the balance at the airport. He also told Member Henry that he converted the cash in three visits to the currency converter. The Tribunal asked the applicant whether he could reconcile these different accounts. He said he was confused, that his parents were helping, and that he hadn’t realised that the amount had got to $[amount]. The Tribunal said it would consider that response.
The Tribunal asked the applicant what he feared. The applicant replied that he fears he will be tortured by the government because of his past in the military. The applicant stated that he feared loan sharks. And the applicant stated that he will keep protesting.
The Tribunal discussed with the applicant how it would approach a discussion with him about his fears and claims. The Tribunal stated that it would discuss each of his activities, suggesting that it would be broadly grouped as his blogging activities in Vietnam, which would include his relationship with the [website], and his interview with the police about his internet activities. Then the Tribunal would discuss the fraudulent visa scam and its impact on the applicant, then the loan shark claim, which the Tribunal noted appeared to be a new claim, and finally the applicant’s activities since he had been in Australia.
Assessment of Claims and evidence, and findings:
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicants’ evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter. The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter. Such a break was taken after two hours of the September hearing and again after two and half hours of the October hearing.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, where he lived in Vietnam, his career, and his interactions with the authorities. The Tribunal found aspects of his evidence to be lacking in detail, inconsistent, implausible, contradictory and unconvincing. There were a number of contradictions in his evidence which raise issues in relation to the veracity of his claims. The Tribunal is of the view that the applicant is an unreliable witness for the reasons that follow.
Circumstances relating to the cancellation of the work visa and making of protection visa application:
The Tribunal wanted first to discuss the Visa Cancellation and subsequent Protection Visa application.
The Tribunal noted the work visa was cancelled [in] November 2015.
The Tribunal asked the applicant when he received notice of the cancellation as it noted that the applicant had not sought to have the cancellation reviewed by the Tribunal. The applicant said he had been living in a share house accommodation. It was after he had moved out that one of the housemates showed him the latter he had received. The applicant claimed this was 4 – 5 months later. He doesn’t remember specifically the date. The Tribunal asked whether he hadn’t received an email about the notification of the cancellation. He said he hadn’t. The Tribunal asked the applicant why he didn’t seek to have the cancellation reviewed by the Tribunal as the cancellation letter would have set out his rights of appeal. He said he didn’t know what the letter said. The Tribunal asked why he didn’t have someone read it to him. He said he was afraid of what would happen. He didn’t want to talk to anyone about it.
In the October hearing, the Tribunal asked the applicant for more specific details about how he came to receive the notification of the cancellation of the work visa. The applicant on this occasion said he received his mail from the landlord of the house he was previously sharing. He said he received it a few months later when he was at work. When asked to explain this inconsistency, he said he was nervous of the Tribunal.
During the October hearing, the Tribunal also asked the applicant where he was presently living. He was also asked where he lived when he first arrived in Australia and where and when he next moved to. The applicant advised that he first lived at [Address 1]. A few months later he moved to [Address 2 Suburb 1]. The Tribunal confirmed that this was immediately next door. The applicant agreed it was.
The Tribunal stated to the applicant that he would have received two notifications – the first being a Notice of Intention to Cancel followed by the Cancellation Confirmation. The notices were sent to [Address 2] – next door to where he was now living. The applicant was asked whether the house mates were still there when he was living next door. He said they were. The Tribunal asked why they simply didn’t hand his mail over the fence to him or put it in his box, next door. He said they didn’t know he lived there. The Tribunal noted this was somewhat implausible – how could they not know their former flatmate was now living next door and had been doing so for some months. He said he hadn’t told them. He was asked was he hiding. He said he hadn’t been hiding. Then he said he received the mail from his landlord at his place of work.
The Tribunal then confirmed that the applicant went underground. He stayed underground until a policeman pulled him up in a random breath test. He thought that was in about May of 2016.
The Tribunal noted the protection visa application date of [June] 2016, which was seven months after the cancellation of his work visa. The Tribunal asked why there was such a delay. The applicant stated he didn’t know about protection visas. The Tribunal noted that the applicant was a member of the local community – surely someone had mentioned the existence of protection visas to him. He said he didn’t want to discuss his situation.

The Tribunal suggested to the applicant that it was strange that he was prepared to talk to a total stranger in Vietnam about his problems and his need to leave Vietnam, but in Australia, he wasn’t prepared to talk to anyone about his visa cancellation, or even get his letter interpreted for him, or ask anyone about what he could do. The applicant replied that he was worried about what could happen to him if he disclosed that he had paid someone a large sum of money.
The representative intervened and stated that the applicant had not talked to a total stranger in Vietnam – he had spoken to a trusted friend. The Tribunal conceded that, but noted it was a friend whose name he couldn’t remember and then went onto talk to someone else he didn’t know but who had been referred to him.
The Tribunal explained again why it was perplexed. The applicant said he was afraid he would be deported. The Tribunal noted that but said that the applicant nevertheless still made a protection visa application. It was still a question of timing. The Tribunal stated that it had concerns about the circumstances of his making the protection visa application which in turn caused the Tribunal to have concerns about the genuineness of the applicant’s claims.
Applicant’s activities in Vietnam
The Tribunal discussed with the applicant his upbringing, and the impact that his father had upon him. The applicant spoke of family discussions wherein his father would express his views.
The Tribunal asked whether the applicant’s father spoke of his paying bribes. The applicant said that he did, that he might simply be driving around, and he could be pulled up and have money demanded. The Tribunal asked whether his father discussed paying bribes to do business. The applicant replied that his father talked about paying bribes at the market.
The applicant stated that he got his views from his father and grandfather. He said these views were personal and were kept within the family. He said that after the war, his grandfather was sent to a re-education camp and since then has always hated the government.
The applicant said that in his mind, he doesn’t like the government.
The Tribunal asked the applicant what he did to express his views. The applicant discussed the circumstances of his being called up for military service. He said he didn’t want to do it, so he moved out of home. But the army chased his parents wanting to know where he was and told them he had to present for service. Apparently his friends told him that if he didn’t present for service, his family would be in trouble. He did present for service and there was no trouble.
The Tribunal asked the applicant what else he did to express his views. The applicant stated that if he saw people being harassed on the road by police asking for money, he would help them. He said these were usually elderly people. Asked how many times he did this, he said a few times. Asked what the police would do, he said they would say to him that he knows nothing about the law, but would let him go.
The Tribunal asked the applicant about the internet. The applicant said he happened to see an anti-government website and he made a comment on it. It was [Website 1] website.
The Tribunal confirmed that the applicant was online and happened to see it himself. He said that was correct – he saw images of people being assaulted. He was in the military at the time.
The Tribunal referred to the applicant’s written claims wherein he claimed that a friend of his had referred him to the site. The applicant said he found it. Asked about this inconsistency, the applicant said he can’t remember.
In the October hearing, the Tribunal asked the applicant again about how he came by the [website]. He said this time that he met a friend online through Facebook. The Tribunal reminded the applicant that he had told Member Henry last year that he came across someone who was posting anti-government things on Facebook and he was drawn to him. He said to Member Henry that he didn’t know anything about him. The Tribunal reminded the applicant of his various claims in this regard to date. At first he said he was a regular visitor to a blog called [Website 1] and he was a friend of the founders Facebook page. In the May 2017 Statement, the applicant said a friend had referred him to [Website 1]. The applicant did not comment. The Tribunal said it would consider this.
In the October hearing, the Tribunal then said to the applicant that it needed to address the elephant in the room. That was that the applicant had made a series of claims. The delegate asked him about the claims identifying some inconsistencies, noting he said he didn’t know what a blog was, and then the applicant recanted all the claims. The representative then intervened and said that the applicant was ill. The delegate had noted that the applicant appeared to be in good health and was participating as he would have expected. The delegate gave the applicant and the representative the opportunity to make a submission post interview. No submission was made. No medical information was provided about the applicant’s anxiety or “nervous breakdown” at the hearing. The Tribunal asked the applicant why it had any concerns with the delegate – he had come to Australia, was now seeking assistance, the delegate and the department were there to help, were trying to help him, why did he recant all of his claims. The applicant responded by saying he had no recollection.
The Tribunal asked about the names he used when making comments on the site. The Tribunal asked did he use the name “[Name 1]” and then “[Name 2]”. He said he did. He said he intended to use aliases.
The representative intervened and said that “[Name 1]” is the applicant’s name, without the middle name. The Tribunal noted that, but referred to the written claims that stated he commented on “[Website 1] through Facebook and elsewhere. I did not use my real name. I used [Name 1], and then that Facebook account was locked, and [Name 2] I have used for about one year now”.
The Tribunal confirmed again with the applicant that he intended to use aliases.
The Tribunal wanted to know how, if the applicant was using aliases, could anyone know the comments were actually made by him, how he could be tracked as the source of the comments.
The representative said she did not know, maybe they used ISPN’s or something.
The representative wanted the Tribunal to ask the applicant one more question. The Tribunal invited the representative to ask it. She asked when did the applicant create the Facebook account in the name of [Name 1]. He replied after he found [Website 1].
In the October hearing, the Tribunal asked the applicant again about his Facebook accounts. The applicant had said that he had changed his Facebook so the authorities could not find his details. The Tribunal asked why he would need to do that as he had always used aliases, he didn’t want to use his real name. The applicant replied that even if he used an alias, he still had to use his real name and date of birth to set up an account. The Tribunal asked him if this was the case, why he would bother using an alias. The applicant said he didn’t think about what he was doing.
The Tribunal asked the applicant whether he had any evidence of his blogging, Facebook, online activities whilst he was in Vietnam. The applicant said he had no evidence of his Vietnamese activity, only his Australian activity that he had provided to the Tribunal.
The representative offered that she felt it was unreasonable for the Tribunal to expect that the applicant would still have records of his online activity in Vietnam.
The applicant confirmed that he opened the [Name 2] account a few months after arriving in Australia.
In his Statement dated 25 May 2017, the applicant claimed that he posted images that friends had given him of police physically abusing people. He claimed his friends wanted to keep their details confidential, but he said he didn’t care what happened to him.
Again, this is a new claim. The Tribunal stated to the applicant that he had had numerous opportunities to make these claims earlier – in the Statements he had already provided, in the delegate interview and in the first hearing with Member Henry.
The Tribunal restated a statement that Member Henry had put to the applicant – that there was a very big difference between “following” a blog or website as he initially claimed, and “posting” or contributing to it as he now claimed. The applicant responded that these claims were the truth.
Applicant’s contact with Vietnamese Police
In his Statement that accompanied his visa application form, the applicant stated that in September 2013, he was visited by plain clothed policemen in a [location], and was arrested and taken to a police station for interrogation. He was asked what internet activities he was involved in and questioned what blog creators he was following.
In his Statement of 25 May 2017, the applicant made much the same claim, but added that the police threatened him. He stated that he told them the name of the blog and the name of the blog owner. At the October 2017 hearing, the representative requested that last sentence be deleted. He also claimed that his army training assisted him to detect that he was being monitored.
The Tribunal asked the applicant what his army training taught him. He said it taught him to be aware of everything in your environment. The Tribunal asked how this training sat with his claimed activities of posting photos on behalf of friends. With his training, why would he not be concerned about what happened to him. He responded by saying the army never taught you to assault people, as he was seeing in the photos. He said he thought he was doing the right thing.
The Tribunal asked whether he was actually arrested by the police. His first claim said that he was arrested. He said that he was “compelled to attend the police station”. As a result he was shocked and afraid of being imprisoned, tortured or killed.
The Tribunal asked that given he denied everything to the police, that he was not arrested, that he was released, and given his military training, did he really fear any harm? He replied that it was because of his military training that he knew that an individual can’t go against the government. The Tribunal then asked that if that was the case, why did he undertake and continue with his crusade. He said he wanted to make people aware.
Applicant’s activities in Australia
In his Statement dated 25 May 2017, the applicant claimed that since being in Australia, he has developed his political views further. He claims that he has continued to be active online. He claims he is a member of a number of political groups on Facebook and he regularly comments and makes posts in those communities.
Member Henry noted that this claim was new.
This Tribunal notes that this claim is new as being subsequent to the written application form, the delegates interview and the first hearing. The applicant tendered some pages in support of the claim. Before Member Henry the forms were not translated. This Tribunal received a copy of a translation before the hearing.
The Tribunal asked what the pages were and what claim did they support. The applicant said they were evidence of his Australian anti-Vietnam activity.
The Tribunal repeated what Member Henry had put to the applicant on 31 May 2017 – that untranslated they could mean anything. The Tribunal noted that notwithstanding they were now translated, it was still concerned by what they represented. The Tribunal asked what the documents were telling it.
The Tribunal considered Page 1 and all agreed it was irrelevant. Page 2 was a single entry that stated, under the name of [Name 2], “It can be said that Vietnam Public Security have now been trained as Professional Assassins”.
The representative agreed that page 3 was irrelevant.
Page 4 contained a passage under the name of [Name 2], “These are Ho Dog Minh’s beating up people trick, giving them a lesson before they die. Ask yourself if someone beat your parents this way….?? What would you do….???”.
Page 5 contained a passage under the name of [Name 2], “Hope you get well soon…! You are truly a courageous woman!!! You lot just wait and see if your Communist Party will survive much longer…?
The Tribunal expressed its concerns that the messages were isolated and undated. The passages gave no context of the discussions they were participating in, gave no indication of what account or platform they came from or what date they were sent or received. The Tribunal stated to the applicant that unfortunately the evidence was meaningless and that the Tribunal could put no weight on it. The applicant said they were from his [Name 2] account that he had opened a few months after arriving in Australia. The Tribunal noted the applicant’s earlier evidence and claim that he had set up the [name 2] account “for about a year now” being a year before [a date in] May 2017. It is also noted that the applicant was apprehended by police [in] May 2016. These dates would undermine the submission by the applicant that he had been engaged in activity whilst he was in Australia under his work visa.
In his Statement dated 25 May 2017, the applicant claimed that he attended a protest in [City 2] “a few weeks ago”. He claimed that the protest was against the government in Vietnam and the way they treat their people. He claimed they also raised the issue about the China Sea and the repression of protest and speech about that issue.
The Tribunal noted that this too was a new claim.
The Tribunal asked the applicant where the protest took place. He said outside the Vietnamese Embassy. Asked when, he said he couldn’t remember, but on pressing him, he said before [a date in] April. The applicant said it was the first protest he had attended. The Tribunal asked the applicant whether he attended protests in the past. He said he had not. The Tribunal asked why not. He said he didn’t know any of the organisers. The Tribunal said that some of the protests have been publicised locally in the past. The applicant said he was focussed on work.
The Tribunal asked the applicant why it shouldn’t consider that he only went to the protest in order to advance his protection claims. He said that he honestly didn’t know that attending the protest would be considered as supporting his visa application.
The Tribunal asked the applicant about the issue, the subject of the protest. He said it had to do with the South China Sea. He said it started at the Vietnamese Embassy and moved to the Chinese Embassy. He said there were concerns about the South China Sea. The Tribunal asked wasn’t the Vietnamese Government taking action against China? Wasn’t the protest actually against China? The applicant said he had concerns about bad things happening to those who participated in the protest. There were lots of journalists present. The Tribunal asked whether he had given his name to journalists. He said he had not. He said photos were taken and he will be identified from photos. The Tribunal asked whether the applicant was suggesting that he will be imputed with anti-government views. He said that was correct.
The Tribunal discussed a summary of the following information with the applicant.
Vietnam’s Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration; however, these are restricted by a number of ‘national security’ provisions within Vietnamese law. In practice, the Government does not tolerate political expression against the CPV, the Government or its policies. On 9 June 2016 the European Parliament adopted resolution 2016/2755(RSP) on Vietnam that called upon the Government to put an immediate stop to all harassment, intimidation, and persecution of human rights, social and environmental activists. It insisted that ‘the government respect these activists’ right to peaceful protest and release anyone still wrongfully held’.
The Government has used specific laws to curb dissent, such as Article 79 of the Penal Code (‘overthrowing the State’), Article 88 (‘conducting propaganda against the State’) and Article 258 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’), all of which in practice take precedence over constitutionally enshrined rights. These offences carry penalties ranging from prison sentences of between six months and 20 years; to life imprisonment or capital punishment. DFAT is not aware of any recent cases of the death penalty being applied for political activities.
Increased suppression of political activism generally coincides with high-level events, such as the lead up to the National Party Congress, National Assembly Elections, and with other significant issues affecting the country, such as the South China Sea disputed territories and the mass fish death crisis in April 2016.
Political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities; however, the treatment from authorities generally depends on the individual’s level of involvement. The US Department of State’s Country Report on Human Rights Practices for 2015 highlighted the arrest and detention of former prisoner of conscience and democracy activist Tran Anh Kim, formally charged in October 2015 under Article 79 of the Penal Code (seeking to overthrow the government). Police in Thai Binh Province reportedly detained Kim and his associate Le Thanh Tung on 21 September, ‘the day he had planned to inaugurate a new political organization, National Forces Raising the Democratic Flag.’ On 16 December 2016, Mr Kim and Mr Tung were sentenced at trial to 13 and 12 years in prison respectively. The court also ordered that both men serve four years of house arrest once released from prison.
A number of incidents involving the prosecution of prominent activists for political dissent were reported in 2016, including:
·[In] March 2016, prominent blogger, Party member and former [official] [was] sentenced to [a number of] years in prison, accused of [publishing] information and [charged].
·On 23 August a court in the central province of Khanh Hoa sentenced two men to up to three years in prison for spreading anti-state propaganda (Article 88) through one of the men’s Facebook accounts. The case has been reported by human rights organisations as a reminder of the CPV’s strong desire to control all political discourse. Nguyen Huu Quoc Duy and his cousin, Nguyen Huu Thien An, were given sentences of three and two years respectively, in a one-day closed trial. According to Radio Free Asia, the court statement said the men ‘deliberately distorted the Government's policies and that they explicitly called for the overthrow of the state’ in 12 articles posted on Facebook.
DFAT assesses that individuals who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, prevented from leaving their homes and/or attending meetings and events. They have also reportedly been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.
Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.
DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.

The Tribunal asked the applicant what he was. Was he a low level activist? The applicant agreed that he was. And if that was the case, then he was unlikely to be at a high risk of being subject to intrusive surveillance, detention, arrest and prosecution. The applicant did not respond.
The Tribunal asked the applicant what his plans were if he had to return to Vietnam. He said he would continue his anti-government activities. The Tribunal acknowledged this, but asked him specifically what he would do. He said he would disseminate information about the government being corrupt. He said he would set up a website. The Tribunal asked whether the intent of this was to elevate himself to a leader or dissident. He said he wanted to become a prominent leader.
Applicant’s Loan Shark claims
In his Statement dated 25 May 2017, the applicant claimed that he owes about $[amount] to people including loan sharks.
The Tribunal acknowledged the country information provided in the representative’s most recent submission. It also noted that it was submitted that the applicant did not put forward the information earlier as the threats to himself and his family’s safety have only recently increased in severity.
The Tribunal also noted this was another new claim. The Tribunal asked the applicant why this claim was only being raised now. The applicant stated that he didn’t know how his parents raised the money for his visa. He stated that four to five months ago, his parents mentioned that people wanted their money back. The Tribunal sought clarification that the applicant himself had not borrowed the money. He said that was correct. His parents had borrowed the money as he was too young. The Tribunal read the applicant’s claims back to him in full, emphasising the part that said the applicant had borrowed the money. The applicant said he had to collect the money. The Tribunal reminded the applicant that he had said he didn’t even know about the loans until about four to five months ago. The applicant said that in Vietnam, his parents told lenders that the applicant had to leave, and the loan sharks will chase anyone. The Tribunal confirmed that the applicant had not received any threats directly himself. The applicant agreed, saying the only threats were through his parents. His parents were attempting to repay the loans a little bit at a time.
Timeline for making application
The Tribunal discussed the timeline for the applicant making his protection visa application. It noted that the applicant arrived in Australia in March 2014. His work visa was cancelled in November 2015. He was apprehended by police in May 2016 and he made his protection visa application [in] June 2016. The Tribunal invited the applicant to explain the delay in making his claims.
The applicant said that when he was arrested, he wasn’t aware of how the law operated, he didn’t know how to get help.
The Tribunal asked the applicant what he planned to do when he received the letter of cancellation of his work visa. The Tribunal noted that he didn’t go to the Immigration Department, he didn’t research the internet (as he had apparently done to confirm that work visas were real), he didn’t ask his friends within the Vietnamese community. The applicant said that after he was arrested, he contacted his employer who suggested he contact a lawyer.
The Tribunal discussed with the applicant that he actually only made a protection visa application when he was caught by the police. It suggested to the applicant that had he not been caught by the police, he would not have made a protection visa application at all. The applicant replied that he was new to the country and things happened faster than he expected.
The Tribunal suggested to the applicant that perhaps the very first thing he said to the delegate was probably a more accurate statement of his position.
The Tribunal read to the applicant the opening paragraph of the delegate’s findings of fact.
The applicant was asked for what reason he came to Australia. He replied that he wanted a new life and to support his family in Vietnam. The applicant was asked whether there were any additional reasons as to why he came to Australia. He replied that the Vietnamese society is not good for him. He was asked to explain why this is so. The applicant responded that the employment outlook there is bleak and he does not fit into Vietnamese society. He was asked to explain the latter. The applicant answered that Vietnamese society is unfair. The applicant was asked to expand on this. He replied that he has witnessed unfair things in Vietnam. He was asked to provide examples. The applicant stated that he saw police hit people. The applicant did not provide any additional examples. He stated that seeing the police hit people prompted him to escape Vietnam and come to Australia in order to start a new life. The applicant said that he has not been hit by the police.
This suggested to the Tribunal that he had no fears at all and were completely consistent with his seeking a work visa as he had. The applicant replied by saying that political opinion is not something you can talk about. The Tribunal reminded the applicant that he had actually talked about political opinions in his written claims.
Findings
During the course of this review, the applicant has attended the Tribunal on four occasions. He also attended an interview with the delegate. This has sadly served to highlight and emphasise the numerous inconsistencies and contradictions between his written claims and evidence. This has confirmed to this Tribunal that the applicant is an unreliable witness and the Tribunal is satisfied that all of his claims are fabricated.
Significantly, and the applicant at no time satisfied the Tribunal as to why, the applicant recanted all of his written claims before the delegate. The delegate asked the applicant why he left Vietnam and was provided with a reason outlined three paragraphs above. He did not reference at all any issues he had with the Vietnamese authorities or police on account of his blogging activities. The delegate then drew the applicant’s attention to his claims. Those claims included a statement that he followed a blog. The delegate identified that the applicant did not actually know what a blog was and his representative had to explain to him what a blog was. The Tribunal discussed this issue with the applicant, and he was not able to provide any reasonable or plausible explanation as to why he recanted his claims.
At one time, the applicant stated that he was nervous before the delegate and became ill and had a nervous breakdown. The Tribunal reminded the applicant that the delegate had given him and his representative an opportunity to make a submission within seven days of the interview. No submission was made or medical report offered before that decision, not as to the interview or as to the applicant’s state of health or mind.
The Tribunal noted the numerous inconsistencies between his later statements and his initial claims including:
·At first he said he followed a blog and latterly said that he was uploading posts to the blog, including uploading photos on behalf of friends. He could not explain this change in claim.
·At first he said he sold all our properties and assets to collect money to pay for his visa. In his May 2017 statement he said that his family sold their land and he borrowed a great deal of money any way he could. In evidence, he said his parents borrowed money but that he didn’t know about that until four or five months ago (four or five months before the hearing).
·At the September 2016 hearing he claimed he didn’t know whether his representative was present on the phone, yet the presiding member had made it quite clear to him that his representative was not attending the hearing before it had started.
·The applicant told the Tribunal that he worked as a labourer, doing mostly [a certain line of work] for Vietnamese people during his military service. The applicant told the September 2016 hearing that he was a [worker] in the military.
·The applicant could not provide a plausible explanation as to why he had ticked two boxes in his application form with a ‘no” against questions about whether he had completed military service’
·The applicant could not provide any details, including the name, of his friend who he spoke to online about his anti-government views and who recommended the person that he speak to about coming to Australia.
·The applicant could not provide any details, including the name, of the person who came to speak to him about getting a visa to come to Australia and to whom he provided all of his information and paid a great sum of money to acquire the said visa. The applicant could not respond as to the implausibility of that scenario, other than to say he had researched visas on line and knew that Australia has work visas. The Tribunal accepts as implausible that he would not also have researched how much they cost and realised that the sum he was paying was extraordinary. The Tribunal accepts as implausible that the applicant would not pay much attention to how much a visa should cost.
·The applicant claimed initially that the visa cost him $[amount]. He told the delegate he paid $[amount]. He told Member Henry that he paid a $[amount] sum up front and the balance at the airport. He told this Tribunal that he paid the $[amount] in two equal payments of $[amount]. The Tribunal finds his explanation that he was confused as his parents were helping and that he hadn’t realised it had got to $[amount] implausible. Only he would know how much he actually handed over in payment for the visa.
·In relation to the receipt of the notification of the cancellation of the work visa, the applicant told this Tribunal in the September 2017 hearing that he had moved out of the share house at [Address 1]. As a consequence, he did not receive notification of the cancellation of the visa until some four or five months later. He received that notification when his former housemates showed him the letter he had received. In the October 2017 hearing, the applicant told this Tribunal that he received the notification from the landlord of [Address 1] when he was at work. He also stated that he now lived at [Address 2], which was immediately next door. The Tribunal found the explanation of the applicant, that his former housemates, who still lived next door at [Address 1], did not know he lived next door which explained why they didn’t hand his mail to him across the fence or put it in his mail box at [Address 2].
·At first the applicant said in his claims he was a regular visitor to a blog called [Website 1] and he was a friend of the founders Facebook page. In the May 2017 Statement, the applicant said a friend had referred him to [Website 1]. He had told Member Henry in September 2016 that he came across someone who was posting anti-government things on Facebook and he was drawn to him. He told this Tribunal in September 2017 that he happened to see an anti-government website and he made a comment on it - it was [Website 1] website. During the October 2017 hearing, he stated again that he met a friend online through Facebook who referred him to [Website 1] – the person whose name he couldn’t remember.
·In the October 2017 hearing, the applicant said that when making comments on the [Website 1] website in Vietnam, he used the name “[Name 1]” and then “[Name 2]”. In his May 2017 statement, the applicant stated he had been using [Name 2] for about a year now (since May 2016) and in the September 2017 hearing he said that he opened the [Name 2] account a few months after arriving in Australia.
·In his initial claims, the applicant stated that he followed blogs – he viewed anti-communist sites. In the May 2017 hearing with Member Henry, the applicant said he was posting and contributing to the blogs. In his May 2017 statement, he was posting things on behalf of friends. As pointed out to the applicant, there is some significant difference between following and posting to a blog.
·The applicant’s initial claims stated that he was “arrested” by the police. He said in evidence that he was not arrested, but “compelled to attend the police station”.
·The applicant stated in the October 2017 hearing that he has continued to be active on line since coming to Australia. He stated that he set up the [Name 2] account, which he used in Australia, a few months after arriving in Australia. This would mean that he has only been active online since May 2016, after he was taken into detention.
·In his May 2017 statement, the applicant stated that he borrowed a great deal of money, now owing about $[amount] to loan sharks. This was restated in his representative’s submission of 29 October 2017. In the October 2017 hearing, the applicant stated that it was his parents who borrowed the money, that they had been hassled by the creditors and that he didn’t know anything about the loans till four or five months ago.
The Tribunal also has grave concerns about the applicant’s credibility by virtue of the time it took to make his protection claims. Allowing for the time that he was present in Australia pursuant to the work visa, it was still some seven months after his work visa was cancelled that he made his claims, and after he was placed in detention.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal is also very mindful of the fact that after his visa was cancelled, the applicant did nothing about it, instead electing to remain here illegally. When put to him the proposition that had he not been caught, he would not have made a protection visa application at all, he could only reply that things happened faster than he expected. The Tribunal is minded to give little credibility to one who knowingly is breaching the law by remaining here illegally.
The Tribunal highlighted during the hearing the number of new claims that had been made particularly in the statement of 25 May 2017. The Tribunal referred to s.423A of the Act and indeed the representative addressed this section in its submission. It was acknowledged that where an applicant raises a claim that was not raised in the primary application, then the Tribunal is to draw an inference unfavourable to the credibility of the claim or the evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.
The Tribunal asked the applicant on each occasion why each new claim had not been raised earlier noting that he had numerous opportunities to do so, as two statements had been tendered to the department and Tribunal, and one hearing had been completed without such claims having been raised. In one instance, of the loan shark loans, the reason the applicant gave in the hearing was inconsistent with the explanation the representative had given it its pre-hearing submission.
The applicant gave no reasonable explanation to the Tribunal as to why the claims relating to the loans, the loan shark, the development of his political views in Australia, his continued online activity since being in Australia, that he will continue his political activity in Vietnam if he returns had not been raised until after having made two statements, received the decision of the delegate, and attended one Tribunal hearing. The Tribunal has drawn a negative inference about the credibility of the applicant and those claims and rejects them in their entirety.
Further, the Tribunal placed before the applicant the provisions of s.5J(6) in relation to his conduct in attending a protest meeting in [City 2] and posting anti-government sentiments. It advised the applicant, and the representative again acknowledged the same in its pre-hearing submission, that the conduct engaged in by the applicant in Australia is to be disregarded unless the Tribunal is satisfied that the person engaged in the conduct otherwise than for the sole purpose of strengthening the person’s claim to be a refugee.
The applicant did not satisfy the Tribunal that he attended the protest for any reason other than strengthening his claims. He had never attended a protest before, was very vague about what the protest was about but was very specific about how he had been photographed and could therefore be identified back in Vietnam as a result.
The Tribunal disregards the claims about attending the protest and posting anti-government sentiments whilst in Australia.
Given the Tribunal’s credibility findings expressed above, the Tribunal rejects the applicant’s claims in their entirety including the applicant’s claims that he viewed anti-communist blog sites, that he visited the [Website 1] blog, that he was visited by [police], that he was placed under surveillance by the police, that he has had bad experiences with the Vietnamese authorities, that he has been called up for or completed military service, that he will be tortured because of his past in the military, that he posted any images on any websites or blogs or social media, that he owes any money to anyone including loan sharks, that loan sharks have visited his family or made any threats to him, that he is a member of any political groups on Facebook or anti-government communities, that he is anti-communist, or that he will engage in any political activity if he returns to Vietnam.
In the Tribunal’s view, the only reliable statement from applicant was his response to the delegate discussed at paragraph 147 above – that he wanted a new life and to support his family in Vietnam, that the employment outlook is bleak in Vietnam and that the applicant considers Vietnamese society to be unfair. The Tribunal is of the view that it is for this reason that the applicant sought a work visa to come to Australia. For the sake of completeness, the Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious or significant harm for reason of his view that Vietnam society is unfair if he returns to Vietnam now or in the reasonably foreseeable future.
Membership of a particular social group - Failed asylum seeker or participant in immigration fraud
The applicant claims that he fears the Vietnamese authorities would put him in jail for his involvement in an immigration fraud. He claims he would be put in jail for an indefinite time.
The Tribunal noted that whilst no specific claim had been made by the applicant, was he claiming that he might be considered as a failed asylum seeker. Was he asking the Tribunal to consider that he may be a member of a particular social group?

The applicant suggested that Australia is a capitalist state. The Tribunal asked whether the applicant was suggesting that he may also be imputed with westernised views.
The Tribunal shared with the applicant a summary of country information.
The Tribunal considered a report from Human Rights Watch[1] which indicated that according to a returnee an Australian immigration official told them that the Vietnamese government would not arrest or imprison any of them. It indicates that a Vietnamese security official subsequently boarded the vessel to welcome them and confirm that no one would be arrested or imprisoned. It indicated that in May 2015, Australian border officials testified before an Australian Senate Estimates Committee that the government had been provided with a written assurance that the people on the boats would face “no retribution for their illegal departure from Vietnam”. The report indicates that Australia should insist that the cases be dropped since Vietnam had promised there would be no retaliation against them. This report also does not indicate that the people on the boat had sought asylum from the Australian government. And the Tribunal noted the applicants did not depart Vietnam illegally.
[1] Human Rights Watch, Vietnam: Drop Charges Against Boat Returnees, 24 May 2016. (
The Tribunal also considered an article titled ‘Three Vietnamese refugees returned from Australia were arrested in Vietnam” which appears to be from a website titled alouc.com and is dated 29 July 2015. It refers to a boat carrying 46 asylum seekers being stopped in Australian waters, the asylum seekers being returned to Vietnam and questioned by the Vietnamese authorities, 43 of them being returned to their homes and 3 being detained. It indicates that the asylum seekers were questioned by the Australian authorities at sea and were assured that the information they provided would not be forwarded to the Vietnamese government. This article does not indicate that the people on the boat had sought asylum from the Australian government.
The Tribunal discussed with the applicant country information that indicated as follows:
‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence under Article 91 of the Penal Code 1999. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. People returned to Vietnam are usually done so on the understanding that they will not face charges as a result of their having made asylum applications—for example, under the tripartite agreement between Vietnam, Cambodia and the UNHCR regarding the return of Montagnards to Vietnam.[2]
[2] DFAT Country Information Report on Vietnam, 31 August 2015.
The Tribunal discussed with the applicant country information that indicated as follows:
DFAT has no information to suggest that people known or believed to have sought asylum in other countries receive different treatment from the Government of Vietnam for having sought asylum. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return (as described under ‘Returning political activists’ above). Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are generally viewed by the government as victims of criminal activity rather than as criminals themselves. We understand that in the past some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to the investigation of people smuggling operations.[3]
[3] Ibid.
Country information from DFAT also indicated the following:
DFAT assess that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity (people smuggling) rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally. While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations. DFAT understand this to be the case in relation to several individuals who were on board vessels returned to Vietnam in April and July 2015, as part of investigations into people smuggling operations On 22 April, the Vietnamese government invited the UNHCR (in a message conveyed by the Australian government) to interview individuals who had been on board the vessel returned in April, including those who had been detained. At the time of release of this report, UNHCR had not sought to interview any of those individuals.[4]
[4] Ibid.
The Tribunal noted that it seemed to be the people smugglers who were incarcerated.
The applicant said that people did not leave legally, like him. He referred to the article referenced at paragraph 165 above.
The Tribunal agrees with the applicant that he left Vietnam legally. He had left pursuant to a valid passport. The Tribunal noted that the applicant had been of no interest to authorities as he arrived and departed the airport in Vietnam in 2014.
The Tribunal noted country information addressed by the delegate in his decision that reported that DFAT notes that Vietnamese nationals who depart Vietnam unlawfully, may be fined under Article 21 of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order.[5] The applicant has not left unlawfully.
[5] At page 13 of Delegate’s Decision, citing DFAT Country Information Report on Vietnam, 31 August 2015, page 19.
The applicant stated that the Australian Government could not possibly know everything that was happening in Vietnam. The Tribunal asked the applicant what it was that the government didn’t know about. Did he have factual information or was it based on speculation. He said his information can be substantiated as he had first-hand information from returned asylum seekers – people who had returned then escaped again. The Tribunal asked for specific information. He said he knew one person who was a returned asylum seeker.
Findings
The Tribunal accepts the country information above. The country information referred to above indicates that the failed asylum seekers who were returned to Vietnam were not charged with leaving Vietnam illegally or for seeking asylum in another country. It indicates that a few returnees were charged under article 275 of the Vietnamese Penal Code for being the organizers of illegal activities. This is consistent with the assessment made by DFAT above, that while some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations.
The applicant has not provided the Tribunal with any country information to support his claims that people who return from the West and/or are westernized and/or have lived in a Western country for a considerable period of time are likely to be arrested. The Tribunal was unable to find any country information to support these claims. The DFAT assessment in relation to the treatment of returnees and conditions for returnees also makes no reference to these issues.
The Tribunal accepts that the applicant is a victim of immigration fraud. The fraud took place in Australia. The applicant has not been charged or convicted of any offence in Australia in relation to the fraud. There is no evidence to suggest that the applicant will be arrested by the Vietnamese authorities on account of him being a victim of fraudulent visa issue or that he will be perceived as departing Vietnam illegally.
While the applicant may be briefly detained and interviewed, the Tribunal is not satisfied that there is a real chance that the Vietnamese authorities will arrest, charge and imprison the applicant in relation to him being a victim of an immigration fraud.
While the applicant may be briefly detained and interviewed, the Tribunal is not satisfied that there is a real chance that the Vietnamese authorities will arrest, charge and imprison the applicant in relation to his seeking asylum in another country, being a returnee from the West and/or someone who is considered to be Westernised and/or someone who has lived in the West for a considerable period of time.
The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of his being a victim of an immigration fraud, membership of a particular social group, being failed asylum seekers, or being a returnee from the West and/or someone who is considered to be Westernised and/or someone who has lived in the West for a considerable period of time if he returns to Vietnam now or in the reasonably foreseeable future.
Detention Centre Statistics given to Vietnamese authorities.
The applicant has claimed that he is aware that Australian Detention centre statistics have been given to Vietnamese Authorities. The Tribunal has noted that the applicant has not claimed that his information was included in those statistics.
The Tribunal notes that there was a data breach by the department of some personal information about people who were in immigration detention in Australia on 31 January 2014.
The applicant was not in detention on that date.
The Tribunal does not accept that any of the applicant’s information has been provided to the Vietnamese authorities at any time.
Cumulative findings:
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his membership of a particular social group, or any other reason if he returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vietnam. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal notes that s.5J(6) does not apply to complementary protection. Accordingly, the Tribunal is obliged to consider the applicant’s claims in relation to his attendance at a protest meeting shortly before the hearing.
The Tribunal asked, and the applicant confirmed, that he has only ever attended one protest meeting. The Tribunal found that he did so for the sole purpose of enhancing his protection claims. The applicant confirmed that whilst he said there were journalists present at protest, he did not speak to any and that unless they could match his face from photos taken at the event, then no one in Vietnam would be aware of his presence there.
The Tribunal has made credibility findings in relation to the applicant, including a finding that it rejects the applicant’s claims in their entirety, which includes that it does not accept that the applicant has engaged in any online political activity since being in Australia. It has found that the applicant has no anti-government political views. The Tribunal is satisfied that the applicant will not be imputed with anti-government political opinions by his attendance at a single protest meeting and to this end accepts country information wherein DFAT assesses that low-level protesters and supporters may often feel intimidated by police presence, and are sometimes detained and released the same day by authorities for protests in Vietnam. Such intimidation would not exist for protests outside of Vietnam.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Vietnam now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that 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 that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
Member

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

[2017] AATA 3074

14 December 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction