1614075 (Refugee)

1614075 (Refugee) [2017] AATA 831 (4 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614075
COUNTRY OF REFERENCE:                  Vietnam
MEMBERS:Saxon Rice (Presiding)

Glen Cranwell
DATE:4 May 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 May 2017 at 11:45am
CATCHWORDS
Refugee – Protection visa – Vietnam – Imputed political opinion – Opposition to Vietnamese Government – Land resumption without compensation – Protests – Re-education camps – Criminal activities

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

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas [in] May 2016.
The applicants appeared before the Tribunal on 21 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants are not represented in relation to the review.
The Tribunal notes that on 12 April 2017, the applicant requested that the hearing be postponed for one month to enable more time to get documents translated and they hoped a ‘legal office’ would be able to assist them if they had more time. The Tribunal did not accept the applicants’ request for a postponement on the basis that the review was lodged with the Tribunal on 2 September 2016 and until 16 March 2017, the applicants had representation. The Tribunal is of the view that the seven months between lodgement and hearing was sufficient time for the applicants to prepare for a Tribunal hearing. In any event, the Tribunal gave the applicants additional time after the hearing to provide further documents to the Tribunal.
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department's file relating to the applicants. The Tribunal has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. This material includes:
·     application for protection visa (including 866B Form, 866C Form and Form 80) for the first named applicant (the applicant);
·     statutory declaration dated [in] April 2016 from the applicant;
·     Form 80 for the second named applicant;
·     copies of the applicants’ identification documents;
·     notification “For the handling of traffic corridor violations of [road name]” dated [in] 2012 and English translation;
·     administrative sanction of [amount] Dong on behalf of [a local official] dated [September] 2012 and English translation;
·     summons issued by [a different local official] dated [September] 2012 and English translation;
·     loan contract with moneylenders dated [in] October 2012 and English translation;
·     [medical] records for the second named applicant dated [two dates in] 2012 and English translations;
·     English translations of birth certificate for the applicants’ child and household registration dated [2013];
·     delegate’s decision record dated [in] August 2016, a copy of which was provided to the Tribunal by the applicants;
·     submission provided to the Tribunal on 20 April 2017 including secondary copies of English and Vietnamese language documents relating to the applicant’s claims outlined above and:
o   [An Australian Corrections service] Offender Case File for the applicant from [2015] to [2016].
o   doctor’s certificate for the second named applicant outlining the effect of her concern for her husband dated [in] January 2017 and a copy of a prescription for medication for the second named applicant.
o   [An Australian] Sentencing record for the applicant.
o   excerpts from the [Police] Court Brief and [Police] record of the applicant’s arrest.
o   a range of documents in Vietnamese and English translations relating to the applicant’s father’s hospital records and photos;
o   written submissions of the second named applicant.
·     submission provided to the Tribunal at the hearing on 21 April 2017 including:
o   birth certificate of the applicants’ child.
o   secondary copies of the applicant’s father’s hospital records and photos.
o   media articles in Vietnamese.
o   other unidentifiable documents in Vietnamese.
o   BBC News article dated 23 September 2010, ‘Police Brutality in Vietnam ‘systemic and widespread’’.
o   Human Rights Watch article dated 22 September 2010. ‘Vietnam: Widespread Police Brutality, Deaths in Custody’.
Following the hearing, the Tribunal gave the applicant further time to provide further documents to the Tribunal. The following further documents were provided on 29 April 2017:
·     extract of Death Certificate for [the applicant’s father] and English translation;
·     Certificate of Land Use Right specifying [the applicant’s father] and [mother] as the owners of [an address], Bo Trach District, Quang Binh Province and English translation;
·     hospital Discharge notice and Certificate of Surgery for [the applicant’s father] and English translation;
·     letter to the Tribunal from the second named applicant.
The Tribunal notes that it has not placed any weight on Vietnamese documents where an English translation has not been provided. This is because the Tribunal is unable to understand documents in languages other than English. The requirement for an English translation was explained to the applicant in the Tribunal’s letter dated 2 September 2016.
The applicant's claims are set out in his statutory declaration dated [in] April 2016, provided to the Tribunal:
I, [applicant’s name and address], do solemnly and sincerely declare as follows.
In the following statement I outline a brief background to my personal and professional life followed by the reason for which I am fearful of returning to my home country.
A. Personal background:
I was a student in Vietnam and wish to learn a trade that can help me to support my family and contribute to Australia society.
B. Why I left Vietnam Q 43 Form C
My de facto [wife] and I are high school sweetheart since 2009.
She fell pregnant to me in 2012. My parents helped us to obtain a little house & land and not for long government issued a clearance in our land for road work and our house was in the parameter on [date in] Aug 2012.
The Vietnamese Government normally pay to relocate us but they refused to compensate us any which way so we appealed with local official for our compensation and justice but it's hopeless.
We fought endless for our only roof over our head but they physically abused and keep threaten us.
[In] September a arrived bulldozer on our land to demolish our home without any warning or notice. We tried to stop them but they hit us and pushed us down. [My wife] was pregnant at that time and was affected badly which caused her to be hospitalised and we had to stay in hospital for special treatment for herself and the baby — Evidence attached.
While we're hiding for treatment in hospital, the communist government summon me but I was so scare that they will use their power to abuse us like they did before and may be put us in re-education camp so we ran further away to Saigon after our [child, named] was born on [date].
We were staying with a friend for a short time as we all knew that the communist official would catch up with us soon.
We therefore planned to look for better future by escaping to other country. After time after time of researching, we found Australia is country freedom of speech, political stable and has a good education system so we chose Australia.
Cost for tuition fee and required is quite high and we couldn't afford it so we borrow from loan shark with 3 years term if not paying back in time they will punish my family — evidence attached. I knew that but I take the chance and finally my visa was granted.
My [wife] delivered a [child] and managed to obtained visa separated not long after I left VN. We had to leave the [child] for my parent as we don't want to let the government know our movement.
C. My Entry to Australia
I started the course of English in [college] for the whole of 2013 to prepare my English for the my main [tertiary studies] which is my dream to have ability to operate a successful [business] later
D. The Story of my Political Involvement
(i) Vietnam
N/A
E. Reasons for applying for protection —Your fear of being persecuted or discriminated against.
I fear that the Vietnamese government official will be prosecuting us for protesting against their wish to take our home which can be retained in re-education camp for an indefinite period with sentence.
We fear that [Mr A] that released from Australia will execute us as they normally do because I did provide information to capture him in Australia.
F. What harm did you experience in that Country, Q 44
The government official did abuse and bashed us at the time they confiscated our home without any compensation being paid. We were forcibly removed and had to hide for our safety until finally we left Vietnam for Australia.
G. What do you think will happen to you if you return. Q 45
We can be executed by [Mr A] and retain in government re-education camp in indefinite time. we also can be executed by the loan shark that we could not re-pay their debt.
H. Who will harm or persecute you.Q46
[Mr A], the loan shark and also the government official
I. Why do you think this will happen to you of you go back. Q47
It has happened to other and these people often come to our home in Vietnam to look for our information. They also called to Australia for threatening us.
K. Availability of Protection from the Vietnames Government. Q 48
Because of the rife corruption in Vietnam and the involvement of [Mr A] with local government officials and police will not be able to obtain any protection from the Vietnamese government either in the area that where we live or in any other part of Vietnam due to the network of criminality is widespread. Our safety cannot be assured.
L. Third Countries where you are able to reside
There are no third countries to which we can travel to live as of right and accordingly Australia is the only country available to us at this stage were we are presently live.
M. Why you have not applied for protection earlier.
As I got detained right away after the incident and also need time to borrow money from our friends so we could not lodge it sooner
At the hearing, the Tribunal noted that the second named applicant had not made any claims of her own, and asked whether she wished to give evidence. The second named applicant said that she would like to make some comments at the end.
The applicant confirmed that he arrived in Australia [in] December 2012. The applicant also confirmed that he returned to Vietnam between [January] 2014 and [February] 2014.
The applicant confirmed the information set out in the protection visa application that he had never worked prior to departing from Vietnam.
The applicant also confirmed that the claims set out in his statutory declaration (set out above) had been read back to him by a Vietnamese interpreter before he signed it. The applicant had no changes he wished to make to the statutory declaration.
The Tribunal asked the applicant about the house in Vietnam that was demolished by the government. The applicant told the Tribunal that he did not own the house at the time of demolition but it was owned by his parents. The applicant lived there from February to September 2012 with the second named applicant after they were married, and with permission from his parents. The house had been there for a very long time, having previously been owned by his grandparents. The Vietnamese government wanted to demolish the house due to road development to widen [road name].
The Tribunal asked the applicant about the notification document dated [August] 2012 that requested the applicant to go to a meeting [in] August 2012. The applicant told the Tribunal that this was the first time he was aware that the government wanted to demolish his house, and that his neighbours received the same notification. The applicant did not attend the meeting [in] August 2012 because when the notification was delivered [in] August 2012 to the house, the situation was explained to him then.
The Tribunal asked the applicant if he knew why the notification had been addressed to him given that it was his parents that owned the house. The applicant said that it was practice to give the notice to the occupants.
The Tribunal asked the applicant if he opposed or supported the demolition of the house. The applicant told the Tribunal that initially, he did not say no because he thought there may be some compensation paid.
The Tribunal asked the applicant why he would expect to be paid compensation when he did not own the house. The applicant said that the house belonged to his parents but he could live there under agreement so he expected that both he and his parents would be paid.
The Tribunal asked the applicant why he did not attend the meeting [in] August 2012 if he was expecting compensation. The applicant said that he did not think ‘they’ would allow any compensation because ‘they’ would have said so when the notification was delivered.
The Tribunal asked the applicant how he knew this when the notification was asking people to come to the meeting to talk about the situation. The applicant said that if ‘they’ wanted to agree to compensation then they would have already told him because ‘they’ also said that the house was illegal.
The Tribunal noted the reference in the document dated [August] 2012 to the illegal construction of the house and asked the applicant what his understanding was of this document. The applicant said that he understood ‘they’ wanted to demolish the house without paying compensation.
The Tribunal noted that the document does not support the applicant’s claim that the government wanted to demolish the house due to the widening of the road, instead referring to the illegal construction of the house in highway corridor. The applicant told the Tribunal that his understanding was that the government words letters in this way so they do not have to pay compensation.
The Tribunal asked the applicant about the house demolition. The applicant told the Tribunal that he heard nothing more from the government following the notification letter before the house was demolished [in] September 2012, and that it was a surprise to him when it happened. ‘They’ arrived and destroyed some of the frontage and then a week or so later, ‘they’ destroyed the rest. The house the applicant was living in and a neighbour’s house were destroyed.
The Tribunal noted that if a highway were being widened, it would have expected that many more houses would be demolished. The applicant said that two houses that were close to the road were demolished but other houses that were built later were further away from the road.
The Tribunal asked the applicant about the sanctions notice dated [September] 2012 regarding a fine of [amount] Dong. The applicant said that this document was issued so that ‘they’ have reason to arrest him.
The Tribunal noted that the document relates to the issuing of a fine, equivalent to approximately AUD$[amount], and not a document for his arrest. The applicant told the Tribunal that he was attacked by local police for initial contact with them so he is afraid they will come back to arrest him for refusing arrest.
The Tribunal asked the applicant if his mother or father were arrested. The applicant said they were not.
The Tribunal asked the applicant why the police were interested in him when he just lived in the house but his parents owned it. The applicant said that he was the one who led the protest to stop the demolition of the house and he had initial contact with the police.
The Tribunal also asked the applicant about the summons notice dated [September] 2012. The applicant said that he thought the police wanted him to appear so they could arrest him.
The Tribunal asked the applicant when he decided he needed to leave Vietnam because of the issue of the house demolition. The applicant said that after he was served with the document to present at the local police station, he knew that they wanted to arrest him so after his child was born, he knew he needed to leave. The applicant clarified that he decided to leave Vietnam after he received the summons notice [in] September 2012, then revised this to say that he decided to leave after he received the administrative sanction notice [in] September 2012.

The Tribunal asked the applicant what steps he took to bring about his departure. The applicant said he discussed the issue with his mother. The Tribunal again asked the applicant what steps he took to bring about his departure. The applicant said he had friends that could help and he accessed the internet so he knew that Australia was a country with good human rights. He applied for a passport and came to Australia on a student visa.
The Tribunal noted that the applicant’s passport was issued on [a date in] 2012 and asked how he came to apply for and be granted a passport before he decided to leave Vietnam. The applicant said that when ‘they’ arrived at his house [in] September 2012, he had already had a discussion with his mother and had prepared. The Tribunal noted that it may have difficulty in accepting that he applied for his passport after his house was demolished on [the date in] 2012 and that it was issued to him on [the following day] given the Vietnamese passport office states that passport applications take up to 8 days.[1] The applicant said that in Vietnam, if he wanted to, he could apply in a day if he paid more money. The Tribunal noted that it may have difficulty in accepting his passport was issued in one day and again noted that he had applied for a passport before he had decided to leave Vietnam. The applicant said he only applied for the passport then but he did not intend on leaving the way he did at that time.
[1] Vietnam Ministry of Public Security, Skull:29/2016 / TT-BCA, Circulars – Guiding the granting, modification and supplementation of ordinary passports Stay in the country for Vietnamese citizens, Hanoi, July 6, 2016.
The Tribunal asked the applicant about his return to Vietnam in 2014 and whether he was afraid he would be arrested. The applicant said that his father was very sick and he went to look after him. He was very afraid he would be arrested but he was not arrested.
The Tribunal put to the applicant that the fact that he was not arrested may suggest that authorities are not interested in arresting him. The applicant said that those that want to arrest him are in his local area and he was in Hanoi in 2014 as his father was in a hospital there.
The Tribunal noted that the applicant’s return to Vietnam may cause the Tribunal to doubt that the applicant fears arrest. The applicant said he was very afraid of being arrested but because his mother was so tired looking after his father and his child, he took the risk.
The Tribunal also noted that DFAT had advised in a 2004 report[2] that states that Vietnam holds “blacklists” of people in relation to its entry and exit procedures and asked the applicant why he wasn’t stopped at the border if he was wanted for arrest. The applicant said that he did not think he was on a national list of wanted people.
[2] DIMIA Country Information Service 2004, Country Information Report No. not yet allocated/04 – Exit Visas for Vietnamese Nationals (sourced from DFAT advice of 13 September 2004).
The Tribunal asked the applicant why it took him three and a half years to apply for a protection visa if he left Vietnam due to his fears. The applicant told the Tribunal that when he first arrived in Australia, his English was very poor and he did not know anything about protection visas. His friends at the time were students and they gave him some advice but he was told he needed solicitors to apply for these kinds of visas and he was in debt and could not afford solicitors.
The Tribunal asked the applicant if he made any enquiries with the Department of Immigration. The applicant said he did not. He did not know anything about the system and he did not have access to good information to use in relation to his case. At that time, he was on a valid student visa and he felt safe in Australia and it was only once he was arrested and detained that he had help.
The Tribunal put to the applicant that it might expect that someone who feared harm in their home country would make enquiries as soon as they were in a safe country and not wait until after their visa had expired and they had been arrested before making enquires. The applicant said that when he first arrived, his English was very poor and he didn’t know anything about the system. He was told he needed solicitors to assist with an application and he could not afford solicitors.
The Tribunal summarised that its concerns in relation to the applicant’s claim regarding his house demolition included:
·The applicant said that he did not initially oppose the demolition because he thought compensation would be paid, but then he did not attend the meeting [in] August 2012 to find out about that.
·The house was not owned by the applicant but by his parents, so it was unclear on what basis the applicant expected he would be paid compensation as opposed to his parents.
·The applicant’s parents have not been arrested and do not appear to be of interest to authorities.
·The documents provided by the applicant regarding the demolition of the house do not support his claim that the house was demolished to widen a highway, given they refer to the illegal construction of the house.
·The applicant applied for and was granted a passport before there was any administrative sanction or summons issued, which he said triggered his decision to leave Vietnam.
·The applicant returned to Vietnam in for approximately a month in early 2014.
·The applicant delayed applying for a protection visa for three and a half years.
The applicant was invited to comment and said that while the house is in his parents’ name, they had told him they would give it to him and therefore it was considered his house. The reason the applicant did not attend the meeting was because the notice refers to the illegal construction of the house. Given his experience of others dealing with a similar situation with the government, he agreed with his parents that he needed to leave the country.
The Tribunal noted country information referred to in the delegate’s decision,[3] provided by the UK Home Office and DFAT, states that official document fraud is very widespread in Vietnam. The Tribunal will therefore need to consider whether to place any weight on the documents the applicant has provided, particularly given the concerns the Tribunal has expressed in relation to his claim. The applicant agreed that false documents happen everywhere but he said his documents are true and genuine and it was up to the Tribunal to accept.
[3] See page 12 of the delegate’s decision.
The Tribunal asked the second named applicant if she had any comments she would like to make in relation to the house demolition. The second named applicant said that it is common in Vietnam for parents to give ownership of property to their children. It is also practice that the person who lives in the house receives letters because they are assumed to be the owner. The house ownership was not officially transferred because they could not afford it as both she and the applicant were unemployed and she was pregnant.
The second named applicant also said that on the day the house was demolished, she was “involved” with police and this affected her pregnancy and she was hospitalised. When the issue started, she and the applicant discussed the need to get passports and to move. The second named applicant said that the applicant returned to Vietnam in 2014 because his father had [a condition] and her mother-in-law also found out about an issue with her health. Their delay in applying for a protection visa was also because they owed money, both of them were unemployed and they needed money to do the procedures. She also said that she wanted to go to the Department of Immigration but she was told she could not.
The Tribunal asked the applicant about the claim that he took out a loan for [amount] Dong and noted the loan document the applicant provided to the Tribunal. The applicant confirmed he borrowed [this amount] Dong, which agreed was approximately AUD$[amount] from a money lender.
The Tribunal asked the applicant if the money lender required some kind of security for the loan. The applicant said he had a loan agreement.
The Tribunal noted that $[ amount] was a lot of money and asked why a money lender would loan this amount of money to someone who had no obvious means to repay the loan when he was unemployed and had provided no security. The applicant said he had previously borrowed [smaller amount] Dong from the money lender and repaid it. The Tribunal asked the applicant how he repaid that loan when he had previously told the Tribunal that he has never worked. The applicant said he had assistance from his parents to repay the debt.
The Tribunal again noted that $[ amount] was a lot of money to loan someone with no income, and again referred to country information in relation to document fraud in Vietnam. The Tribunal outlined that based on its concerns and country information about document fraud, it might not place any weight on the loan document provided. The applicant said that the loan money was provided on a trust basis and with assistance from his parents and others due to the desperate circumstances. There are many money lenders in Vietnam and if you have connections then they can help you. The loan was on condition of repayment in 3 years and as that time has lapsed, the applicant was told from his mother that they have visited her and threatened and destroyed furniture.
The Tribunal noted that if it does not accept that the applicant had the loan as claimed then it might not accept that money lenders have visited his parents trying to get the money back. The applicant said that the documents and other paperwork he has provided are all true and this is all he can provide.
The Tribunal asked the applicant about his claim regarding [Mr A] and why he would want to harm the applicant. The applicant said that he borrowed the [amount] Dong from [Mr A] and because he could not pay off the loan in time, he has harassed his family to get the money back and threatened to kill him if he sees him again.
The Tribunal noted the applicant’s conviction in September 2015 and sentencing and asked if the applicant has any fears of returning to Vietnam based on his involvement with [criminal activities] in Australia. The applicant said that he thought ‘they’ will search for him and probably try to kill him if he returns to Vietnam.
The Tribunal asked why they would search for him or kill him and why he was at risk if he returns to Vietnam. The applicant said that the loan was provided over 3 years and he has now approached his mother and he is threatening to kill the applicant, his mother and his child if he returns to Vietnam.
The applicant confirmed that the [person’s] name was [Mr A].
The Tribunal noted that it had asked the applicant two times why [Mr A] would want to kill him, and the applicant had on each occasion referred to the loan. The applicant told the Tribunal that when he was arrested, the Police wanted his mobile phone and he resisted this because he thought it would do a lot of harm to his family back home. The applicant said that the Police told him that if he gave them the password to his phone, they will assist him and even give him a 2 year visa to be protected. The applicant agreed to give the Police his password and he cooperated with the Police.
The Tribunal noted that Police records of his arrest state that he confirmed he lived at the address he was arrested but otherwise he refused to answer any questions which suggested that he did not cooperate with the Police as he claims. The applicant said that he was later told that [Mr A] was arrested and he was deported back to Vietnam and he fears that if he returns, [Mr A] will search for him and try to harm him.
The Tribunal put to the applicant that it did not have any evidence before it that he cooperated with the police, so it was not sure how [Mr A] could conclude that the applicant cooperated with police. [Mr A] was only removed from Australia, not charged with a criminal offence. It was the applicant who was charged, pleaded guilty and went to jail. The Tribunal asked the applicant why [Mr A] would harm him in these circumstances. The applicant said that when [Mr A] was arrested, it was recorded that $[amount] was located at the address and he was deported because his visa had expired. [Mr A] believes this all happened because the applicant cooperated with the police.
The Tribunal noted that if [Mr A] was removed because his visa had expired, it might have difficulty in accepting that [Mr A] believes that his removal is the applicant’s fault, given that he would be subject to removal for not having a valid visa whenever he was ‘picked up’. The applicant said that [Mr A] thinks he was arrested because the applicant provided his phone to police and even though he was not charged, he believes that the applicant was the one that gave the information to police.
The Tribunal put to the applicant that it might not accept that he provided the password for his mobile phone to Police as there appeared to be no evidence of this. If [Mr A] ever approached the applicant, the applicant could deny that he provided the password. The applicant said that [Mr A] was arrested after the applicant so he believes that [Mr A] thinks he provided information to the police.
The Tribunal asked the applicant if there was anything else he wanted to make the Tribunal aware of. The applicant said that with the assistance of the police, he was given a 2 year visa and he was allowed to remain in Australia and then he met people in prison that helped him put in a protection visa application.
The Tribunal asked the second named applicant if there was anything else she would like to make the Tribunal aware of in relation to the money lender or [Mr A]. The second named applicant said that when her husband was arrested, she was in [city]. She said she tried to get in contact with the police in relation to the 2 year visas and her husband’s cooperation with police but she was unable to get any information. The second named applicant also said that on the day [Mr A] was arrested, a good friend of [Mr A] asked her if it was her husband that informed on him. [Mr A] had also asked if his friend had any information about the applicant’s release or deportation then they will “try to get in touch with him”.
The second named applicant also told the Tribunal that the information her husband provided to the police led to [Mr A’s] arrest and the arrest of [number] other people. She again said she made further inquiries of police about her husband’s cooperation but she did not think they wanted to release any information to people not in the police force. When [Mr A] was arrested, because he refused to say that the $[amount] was his, the police did not have enough evidence to charge him and looked for other ways to get him by looking at his visas.
ASSESSMENT
The applicants claim and the Tribunal is satisfied on the basis of the personal details provided, that they are Vietnamese nationals. Vietnam is therefore the receiving country for the purpose of assessing the applicants’ claim for protection.
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Vietnam, there is a real risk they will suffer significant harm.
The Tribunal does not accept that a money lender loaned the applicant [amount] Dong (approximately AUD$[amount]) when the applicant had never worked and did not provide security for the loan. The Tribunal considers it implausible that a money lender would loan this amount of money to a person who had no obvious means to repay the loan. The applicant claimed at the hearing to have previously borrowed and repaid [smaller amount] Dong from the same money lender, but his evidence on how he repaid the loan was vague and appears limited to his parents having made payments on his behalf. Even if his parents had previously repaid a loan of [smaller amount] Dong, the Tribunal considers it implausible that the money lender would have loaned him nearly five times that amount without security or an obvious means to repay the loan.
Given the Tribunal has not accepted that the applicant borrowed [amount] Dong from a money lender, and in light of country information regarding the prevalence of fraudulent official documents in Vietnam, the Tribunal finds that the loan document dated [in] October 2012 is a fraudulent document. The Tribunal also notes that during the Tribunal hearing, the applicant claimed that the money lender was [Mr A]. However, the ‘loan agreement’ is signed by “[name]” and “[name]” as the “moneylenders”, which further supports the Tribunal’s finding that the document is fraudulent.
It follows from the Tribunal’s findings in the preceding paragraph that, in the absence of a loan, it does not accept that the money lender has since visited and threatened the applicant’s family due to the applicant’s failure to repay the loan.
The Tribunal notes that there are media reports indicating that widening of the [named] section of [road name] was due for completion in late 2015.[4] However, the Tribunal does not accept that the applicant’s family home was demolished as part of widening [road name] for the following reasons:
·The applicant told the Tribunal that when he first received notice of the government’s intentions to demolish the house [in] August 2012, he did not initially oppose the demolition because he thought compensation would be paid. The applicant then said that he did not then attend the meeting two days later to find out anything further on the basis that he said that ‘they’ would not allow any compensation because ‘they’ would have said so when the notification was delivered. These two accounts are contradictory and lacking in credibility.
·The Tribunal considers that the applicant’s claims regarding compensation for the demolition of the house to be lacking in credibility. The applicant told the Tribunal that his parents owned the house. Beyond the applicants’ mere assertion, no credible basis was put to the Tribunal as to why the applicants as occupants and not owners would be entitled to compensation for the demolition of the house. It may be credible that the occupants would be advised that the house was going to be demolished, as they would have to find somewhere else to live, but the Tribunal would have expected compensation issues to be raised with the owners, namely the applicant’s parents.
·The notification document [in] August 2012 states that it relates to “Solving the construction of the illegal, corridor violating of [road name]”, which suggests that the house in question had been illegally constructed in the highway corridor. The Tribunal notes that the applicant claimed that the government often says that houses are built illegally so they do not have to pay compensation. However, this again contradicts the applicant’s evidence that he did not initially oppose the demolition of the house on the basis that he thought compensation would be paid.
·The applicant told the Tribunal that his parents have not been arrested. If fines or arrest warrants had been issued in relation to the illegal construction of the house, the Tribunal would have expected his parents as owners of the house to be of primary interest to the authorities.
·The applicant told the Tribunal that he decided he needed to leave Vietnam after he received the administrative sanction notice [in] September 2012. However, the applicant was granted a passport [in] 2012, before there was any administrative sanction or summons issued. If the reason for the applicant’s departure from Vietnam was due to the fear of arrest following the administrative sanction, it is implausible that the applicant applied for and was granted a passport prior to the development of this fear.
·The applicant returned to Vietnam in 2014. The Tribunal does not accept that the applicant is of interest to authorities given he was not arrested during this visit was able to enter and exit Vietnam without coming to the attention of authorities. While the Tribunal notes the applicant’s explanation for his return to Vietnam given his father’s health, the applicant’s willingness to return causes the Tribunal to doubt the genuineness of the applicant’s claimed fear of harm or arrest.
·The applicant did not apply for a protection visa until approximately three and a half years after arriving in Australia. If the applicant genuinely held the fears claimed, the Tribunal would have expected him to have lodged a protection visa application, or to have at least made inquiries with the Department, shortly after his arrival in Australia and well before his arrest and imprisonment on [criminal] offences. In order to leave Vietnam, the applicant claimed he had friends that helped and he accessed the internet so he knew that Australia was a country with good human rights. On this basis, the Tribunal does not accept the applicant’s explanation that he was unable to access information regarding protection visas.
·The Tribunal places no weight on the notification document of [August] 2012, the administrative sanctions notice of [September] 2012 and the summons dated [September] 2012 as supporting the applicant’s claims. The Tribunal has previously found that the loan agreement provided by the applicant is a fraudulent document. Given the country information regarding the prevalence of document fraud in Vietnam, the Tribunal considers it likely that if the applicant has provided one fraudulent document then other documents are likely to be fraudulent as well. As noted above, the Tribunal would have expected the notification document to have been addressed to the applicant’s parents as the owners of the house, rather than to the applicant. In relation to the other documents provided, the Tribunal notes that the medical records relating to the second named applicant do not on their face support the applicant’s claims relating to the demolition on the house. The second named applicant could have been hospitalised [in] September 2012 for any number of reasons unrelated to the demolition of the house.
[4] [Deleted].

When these factors are considered together, the Tribunal the applicant’s claims in relation to the demolition of the house to be completely lacking in credibility. Accordingly, the Tribunal finds that the applicant’s house was not demolished. It follows that the Tribunal finds that the applicant was not involved in any altercation with the police and that the applicant is not of interest to the authorities as a result of any protest activity.
The Tribunal accepts that the applicant was arrested [in] October 2015 in relation to [criminal] offences, and sentenced [in] September 2016.
The Tribunal does not accept that the applicant cooperated with police in Australia in relation to [Mr A]. The Tribunal acknowledges that a page of a statement apparently from a police officer (provided by the applicant) indicated that the applicant did give the PIN number for his mobile phone to the police, but the statement does not indicate that the police received any assistance from that. The [Police] Court Brief (also provided by the applicant) stated that the applicant confirmed that he resided at the address raised by police, but otherwise declined to answer questions on the basis that “he feared for his family’s welfare”. He also declined to take part in a formal interview. The Tribunal is not satisfied on the available evidence that the applicant assisted the police. The Tribunal’s attention was drawn to a reference in the sentencing judge’s remarks to his “very early plea of guilty at the committal stage, and your cooperation with the administration of justice”, however there is nothing in the remarks to suggest that the applicant’s cooperation with the administration of justice extended beyond his early guilty plea.
The Tribunal accepts that [Mr A] was subsequently arrested by the police but not charged, and removed from Australia because his visa had expired. This is supported by the Department’s movement records in relation to [Mr A] and information on the ISCE database. However, as noted in the preceding paragraph, there is no evidence from the police to suggest that the applicant was responsible for the arrest and subsequent removal of [Mr A]. The Tribunal is therefore not satisfied that he was so responsible.
The Tribunal finds that the risk of harm to the applicant at the hands of [Mr A] is remote. Beyond the applicants’ mere assertions, there is no evidence that [Mr A] has threatened the applicants or members of their family. The Tribunal has not accepted that [Mr A] loaned $[amount] to the applicant. The applicant was charged, convicted and imprisoned over the [criminal offences]; [Mr A] was not. [Mr A] was subjected to no punishment other than removal from Australia, which was a foreseeable consequence of overstaying his visa. According to the applicant, there were [number] other people arrested with [Mr A], and it is not clear to the Tribunal why the applicant would be suspected of cooperating with the police any more than one of the [number] other people. The Tribunal considers [Mr A] would not be motivated to harm the applicant in those circumstances. In any event, as noted by the delegate, there is no evidence from the police to suggest that the applicant and [Mr A] were even involved in the same [criminal activities]. The Tribunal is therefore not satisfied that the applicant and [Mr A] were so involved.
The Tribunal notes that the second named applicant did not make any claims on her own behalf. In light of its findings in relation to the applicant, the Tribunal finds that there is not a real chance or real risk that the second named applicant faces serious harm or significant harm if she returns to Vietnam.
Cumulative assessment
Considering the applicants’ individual circumstances and country information on a cumulative basis, the Tribunal finds their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.
Considering the applicants’ individual circumstances and country information on a cumulative basis, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam that there is a real risk that they will suffer significant harm.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do 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 either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Saxon Rice
Member

Glen Cranwell
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 831

4 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice