1616780 (Refugee)

[2018] AATA 5065

1616780 (Refugee) [2018] AATA 5065 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616780

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Frances Simmons

DATE:10 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 10 October 2018 at 4:50pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Catholic – imputed political opinion – anti-government protestor – particular social group – failed asylum seekers – fear of torture and detention – data breach – visit by Vietnamese officials to Australian immigration detention centre – did not attend hearing – protection (Class XA) visa set aside and substituted with refusal to grant protection (Class XD) visa

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 36, 45AA, 65, 426A, 438, 499

Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES

BXD15 v MIBP [2017] FCA 1209
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985 ) 6 FCR 155
SZOQY v MIAC [2011] FMCA 120

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who the Tribunal accepts is a citizen of Vietnam, applied for the visa on 25 June 2014 and the delegate refused to grant the visa on 24 December 2014.

2.    The applicant sought review of the delegate’s decision and the Tribunal (differently constituted) affirmed that decision on 9 February 2016. The applicant applied for judicial review of this decision.  On 31 August 2016 the Federal Circuit Court ordered, by consent, that the original decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law. The original Tribunal decision was affected by jurisdictional error because the Tribunal affirmed the delegate’s refusal of a Protection (Class XA) visa, rather than substituting a new decision in relation to a Protection (Class XD) visa.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Therefore, although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4.    The applicant was invited by the Tribunal to appear before it at 10:30 am on 8 October 2018 to give evidence and present arguments.  Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the last email address for service provided in connection with the review.

5.    The Tribunal notes that after the application was remitted to the Tribunal for reconsideration, on 11 October 2016 a Tribunal officer contacted the applicant via telephone. A file note records that the applicant advised the officer that all correspondence in relation to the review be sent to him via email. He provided an email [address] which was different to the email address recorded on the Departmental system [ISCE]. The case note records that the applicant was ‘highly reluctant’ to provide his postal address and provided a new postal address that was different, in respect of the street number, from the address recorded on ISCE. The Tribunal officer repeated the email address the applicant provided multiple times and he confirmed it was correct.  However, when an acknowledgment of court remittal was sent to the email address provided by the applicant to the Tribunal there was a return to sender bounce back. An attempt to contact the applicant to clarify his email address was unsuccessful as his phone was switched off. Therefore, the receipt of application was sent to email address recorded for the applicant on ICSE.

6.    On 24 July 2018 a hearing invitation was sent to the email address recorded on ICSE (which differs from the email address the applicant provided to the Tribunal).[1] The hearing invitation was also sent to the misstated email address the applicant provided to the Tribunal on 11 October 2016 (this resulted in a return to sender bounce back). The Tribunal instructed a Tribunal officer to contact the applicant to confirm receipt of the hearing invitation. On 10 September 2018 a Tribunal officer acting on the Tribunal’s instructions attempted to contact the applicant on the telephone number but was unable to reach him. The Tribunal officer left a voice message for the applicant to contact the Tribunal. The applicant did not do so. The Tribunal notes that the applicant was also sent two SMS messages to remind him of the scheduled hearing. The second SMS reminder failed.

[1] SZOQY v MIAC [2011] FMCA 120 (Cameron FM, 9 March 2011).

7.    The applicant provided no response to the hearing invitation and did not appear before the Tribunal at the time and place scheduled. He did not make contact with the Tribunal to inform it of any reason why he was unable to attend or to request that the hearing being rescheduled. In these circumstances and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue on review

1. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

Claims and evidence

1. The Tribunal has before it the Department’s file,  the file of the previously constituted Tribunal (1500748) and the current Tribunal file (161780).  This material contained within these files includes the applicant’s protection visa application, statement of claims, a copy of entry interview undertaken by the applicant, identity documents, sacrament certificate, oral testimony in the interview with the delegate on 12 October 2014, written submissions from representative dated 29 October 2014, newspaper articles, the delegate’s decision record,  oral testimony to the Tribunal differently constituted on  9 February 2016, the Tribunal’s decision and country information referred to therein.  

2. A certificate purportedly issued pursuant to s 438(1)(a) of the Act has been placed on folios 122, 137-139 of the Departmental file restricting the disclosure of the information contained therein. If a certificate is issued because the disclosure of information or documents would be contrary to the public interest, it is necessary for the certificate to specify the reasons why. For s.438 certificates, this is any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.[2] In MZAFZ v MIBP [3] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were  ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[4]

   [2] S. 438(1)(a)(i).

   [3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

   [4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]-[48].

3. The certificate on the Departmental file states that the disclosure of the information would be contrary to the public interest because it is information ‘related to an internal working document and business affairs’. In the Tribunal’s judgment the certificate is invalid as the description of the reasons for restriction does not properly identify a basis for public interest immunity. The material purportedly covered by the s 438 certificate is an administrative document --- a disclosure checklist – and a summary of the outcome of the application for judicial review made by the applicant. As there is no material covered by the certificate which is adverse to the applicant, the Tribunal has not invited him to comment on or respond to the material. The material purportedly covered by the certificates is not relevant to the claims made by the applicant and does not form part of the Tribunal's consideration.

4. In the statement of claims dated 13 June 2014 accompanying his protection visa application the applicant states:

   Introduction

   I am a citizen of Vietnam. I do not have a right to citizenship or a right to reside in any other country.

   I am Vietnam and a Catholic.

   I was born on [date] in [Village 1], Nghi Loc, Vietnam. [Village 1] is a large village, the main industry is agriculture in growing rice. The population of about [number] people. The majority of the people are Catholic and there are many churches in the area.

   I have one brother who I looked after me after both of my parents were killed while I was in High School.

   The country to which I fear returning

   I fear returning to Vietnam.

   Why I left that country

   I was continuously monitored by the local Vietnamese authority because I was one of the members of the Parish Council in [my town]. I performed duties in the church and assisting the priest to perform mass and was involved in choirs. I also organised prayers and attended all [activities]. I also assisted with [specified tasks] when people attended [mass].

   I am a member of the local parish youth group. My group organised a protest to fight against the authorities to stop the repression of the Catholic people in the village. We totally disagreed with the religious oppression. We wanted to be able to practice our religion freely.

   In July 2012 an incident occurred in [Vinh]. The church in Con Cuong District, which belonged to Vinh Diocese. During a mass held in a church, the police came and disrupted the mass, destroyed artefacts in the church, including a statue of the Virgin Mary and beat many people who were in the church at the time. To my knowledge this incident was in the local media.

   Following that my group, organised a mass for those who had been beaten in that police raid. In that particular mass we expressed our concerns and wanted to fight against the police brutality shown that day.

   We set a date for the mass on 14 July 2012. However, before we were able to hold that mass the local Vietnamese army sent [vehicles] to the Parish church to threaten the people not to hold the mass on that day. There were [vehicles] parked in front of the church to block entry. There were also more than [number] police standing around in front of the [vehicles].

   We were informed by the Parish priest of the area that the youth had gathered together and organised a protest with banners saying that we were all against the actions of the authorities and the repression of the Christian people. The banners also said that we disagree with the authorities stopping us having freedom of religion. There were more than [number] people who had participated in that protest on that day.

   Before the Vietnamese authorities sent the [vehicles], they sent people to monitor and watch us. I was one of the people who were monitored. I participated in the protest / prayer day on the 14 July.

   I knew I was monitored because the local police sent me a [letter] asking me to come in for questioning. I was asked to go to the People's Committee of [Village 1]. This is a very powerful committee of local officials. I was frightened and scared because I heard of other people who had been called by the police and then we didn't know what happened to them. I think that they may have been detained or disappeared. I knew [a man] from our local parish youth group and was active in asserting his freedom of religion. He was detained and no one knew where he was up until the time that I left Vietnam.

   I then left the village. I went to another area, a few kilometres away from my village, to hide. I did not attend the interview. The police then went to my house to search for me. They had threatened my brother and told him that if I was captured they would persecute me.

   I met of friend of my brother, who assisted me to leave Vietnam by boat. He arranged my passage to Australia.

   What I fear may happen to me, by who and why, if I return to that country

   I fear that I will be detained and tortured by the local authorities if I return to Vietnam.

   I fear that I will be detained because I of my religion as a Catholic and because I protested against the incident that occurred in the Con Cuong church. I fear that I will be detained and tortured because I did not attend the local committee interview.

   I fear that I would be arrested, detained and tortured because I have seen this happen to other people from my village.

   Why I think the authorities of that country cannot or will not protect me if I were to go back to that country

   The Vietnamese authorities will not protect me if I am returned to Vietnam. They are against Catholics as they are a Communist Government.

   Why I think relocation to another area in my country is not a reasonable option

   I cannot relocate to another area of Vietnam because I believe that I will be detained by the authorities. If I were to move to another area I would have to register with the local authorities. I believe that they would be able to check my records with my home town and find out that I have an outstanding issue with the local authorities in Nghe An. It is unreasonable for me to live in hiding in Vietnam. I would not be able to access health care or find work. As it is the Vietnamese government that I fear, relocation is not a reasonable option.

   I believe that across Vietnam, all Catholics are persecuted by the Vietnamese authorities.

5. The applicant attended an interview with the delegate on 2014. In addition to the claims made in his written statement, it was submitted that the applicant was also at risk of harm because he had been affected by the data breach in which personal information of 10 000 asylum seekers was inadvertently published on the Department’s website (the data breach), Vietnamese officials had interviewed Vietnamese asylum seekers in immigration detention in Australia, and because he would be identified as a failed asylum seeker who departed Vietnam illegally. It was submitted that the applicant would be at risk of harm because of his imputed political opinion against the Vietnamese government, his membership of particular social group of failed asylum seekers, and his illegal departure from Vietnam.

6. On 24 December 2014 the delegate made a decision that the applicant is not a refugee or owed complementary protection and refused to grant the applicant a protection visa (Class XA).  The applicant provided a copy of the delegate’s decision with his application for review on 19 January 2015.

7. The applicant appeared before the Tribunal differently constituted on 9 February 2016 to give evidence and present arguments. On the same day the Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant a protection visa. As noted above, the applicant successfully sought judicial review of this decision.

8. As noted above at paragraph [7], in the circumstances of this case and pursuant to s 426A, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal. Accordingly, this matter has been determined on the evidence available to the Tribunal.

ASSESSMENT OF CLAIMS AND EVIDENCE

1. The Tribunal accepts, based on evidence before it, that the applicant is a Vietnamese citizen.  The Tribunal has therefore assessed his claims against Vietnam as his country of nationality for the purposes of the Convention and as his receiving country for the purposes of s.36(2)(aa).

2. 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]

   [5] 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

1. When the Tribunal wrote to the applicant and invited him to appear before the Tribunal to give evidence and presents arguments, the Tribunal put the applicant on notice that it has considered all the material before it, but was unable to make a favourable decision based on this information alone. On the evidence currently before the Tribunal, the Tribunal accepts that the applicant is from [Village 1] in Nghe An province in Vietnam, and that he is a practising Catholic. The Tribunal also accepts that the applicant was in immigration detention at the time of the notorious data breach, that Vietnamese officials interviewed other Vietnamese asylum seekers while the applicant was in immigration detention, that the applicant was not interviewed by these officials, and that the applicant would be identified as a failed asylum seeker who left Vietnam illegally if he were to return to Vietnam.

2. The Tribunal has carefully considered the applicant’s evidence about his claims that he was involved in organising a mass/protest in July 2012 and, in the aftermath of this event, he was summoned by police.  Country information indicates there are some restrictions on religious practice in Vietnam, and the treatment of religious groups varies widely and is dependent on their relationship with the government. [6]    Catholics make up 7% of Vietnam’s population (approximately 6.7 million people) and the Catholic Church is reported to be one of 14 religions that hold full government recognition and registration. Religious groups subjected to government monitoring are reported to be mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism.[7] 

   [6] DFAT Country Information Report -- Vietnam, 21 June 2017, CISEDB50AD4597, p.12-13

   [7] DFAT Country Information Report -- Vietnam, 21 June 2017, CISEDB50AD4597, p.12-13

3. The Independent Catholic News website provides the following account of protests which took place in Xa Doai on 15 July 2012:[8]

   [8] Accessed at

   Vietnam: mass protests after government crackdown on Catholic Church - 15 July 2012

   In spite of a massive police presence, and the cancellation of ferries, tens of thousands of Catholics in Vinh Diocese took to the streets today (15 July) to protest against local government attacks on the Con Cuong parish community.

   In a letter dated 10 July, 2012, sent to all cardinals and bishops in Vietnam, the diocese of Vinh reported that: “Recently, Catholics in the diocese of Vinh who reside in the North West region of the Nghe An Province have been repeatedly persecuted for their faith. The attack on Sunday 1 July was the peak of a series of harassments against Catholics in the region. On that day, the local government mobilised large groups of police, army, militiamen, and thugs to disturb, and to physically attack priests and the faithful. They seized the chapel of Con Coung, desecrated the Eucharist Host, and smashed a statue of the Virgin Mary.”

   Asking for spiritual supports and solidarity from other dioceses in Vietnam, the diocese called for massive protests today to demand an end to the persecution that is “ongoing by the local government”, and the immediate halt to the ongoing propaganda and defamation campaign against Catholics in the state media.

   Dioceses across Vietnam have responded to the appeal with special prayers.

   Banners have been hung in front of all churches of the diocese of Vinh protesting at the government actions.

   ...

   On Saturday morning, three armoured fighting vehicles were seen in front of the Bishop's Residence of Vinh. Police in provinces of Quang Binh, Ha Tinh, and Nghe An had been put on high alert in the wake of huge protests by Catholics from 178 parishes of the diocese of Vinh. Large groups of security men also roamed the streets near churches.

   Thousands of local Catholics had spent Saturday night walking for tens of kilometres on National Highway 1 before they could reach to the deanery’s church. At dawn, National Highway 1 en route to Thuan Nghia was packed with thousands of motorbikes carrying Vatican flags from parishes of Loc Thuy, Son Trang, Xuan An. By 7am local time, thousands of Catholics had already gathered at deaneries of Bot Da, Thuan Nghia, Van Hanh, Bao Nham, Cau Ram, Nhan Hoa, Cua Lo, Dong Thap, Phu Qui, Can Loc, Van Loc, and at the bishopric office of Xa Doai.

   Scheduled services of ferries between Dong Lam and Quan Lang were cancelled to prevent local parishioners to join the protests. Local Catholic sources from the diocese of Vinh also report an incident at Bot Da where police and thugs disrupted the Mass at Bot Da. The protests at other deaneries went peacefully.

4. The Tribunal has had regard to Google translations of a report was located on the Viet Info website in relation to troop movements on 14 July 2012 in Xa Doai[9] and a Google translation of a Radio Free Asia report was located in relation to mass on 15 July 2012 in Xa Doai.[10]

   [9] Accessed at

5. In circumstances where the applicant has failed to attend the scheduled hearing, the Tribunal has not had an opportunity to test and examine the applicants’ claims in evidence. The applicant has provided limited detail about the activities of the parish youth group that he claims to have been a part of and, in particular, the role of this youth group in organising protest activities. The applicant has not provided any further information or explanations about the apparent inconsistencies between his account of protest and the media reports that indicate the protests took place on 15 July 2012, not 14 July 2012 as stated in his written claims.  The Tribunal has considered the applicant’s evidence at the first hearing which was there was a normal everyday mass on 14 July 2012 and then the incident with the [vehicles] took pace as he was preparing for the larger mass the following day but, without further explanation, of why his evidence has evolved over time the Tribunal cannot be satisfied as to the veracity of this claim. The Tribunal has considered the evidence the applicant has previously provided about the mass/protest but on the available evidence and in the absence of an opportunity to test and examine his evidence, the Tribunal is not satisfied as to the veracity of this claim or his claim that he was summoned by the police.

6. In this case the applicant has not attended the scheduled hearing, which would have been an opportunity for the applicant to provide further information and for the Tribunal to test and examine his evidence and to discuss with him country information that is relevant to his case.  On the evidence before it the Tribunal has insufficient evidence to be satisfied as to the substantive aspects of the applicant’s claims that he attracted the adverse attention of the Vietnamese authorities for reasons related to his religious activities and involvement in organising in protests in Nghe An in July 2012. Accordingly, the Tribunal is not satisfied that the applicant was involved in a mass/protest in Vinh city on 14 or 15 July 2012 or that the local Vietnamese authorities issued a summons requesting that he report to them or that the applicant was hiding outside of his home village from mid July to the time of his departure or that the police visited his home looking for him. Furthermore, without further information about the churches the applicant attended in Vietnam, the Tribunal is not satisfied that he regularly attended an unregistered house church or that he or is family members have experienced any difficulty attending church and practising their Catholic faith or that the applicant was personally monitored and targeted as claimed. .  

A practising Catholic

1. On the evidence before it, the Tribunal accepts that the applicant is a practising Catholic and that he may have participated in local parish youth activities and been the member of a parish youth group, including the assisting the priest to perform mass. However, the Tribunal is not satisfied that he had any formal or leadership role in the Parish Council or that, as a member of a parish youth group, he was involved in organising any protest activities. As noted above, the Tribunal is not satisfied that the applicant has attracted the adverse attention of the Vietnamese authorities in the past because of his religious and/or political activities and nor is the Tribunal satisfied that the applicant had a leadership role in Parish Council or that he was involved in organising or attending protests about the treatment of Catholics or other religious/political issues.

2. The Tribunal notes DFAT observes that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.[11]  The Tribunal notes that the applicant told the delegate he attended his local church in [Town 1] and a church in [Town 2] on a regular basis and, on the evidence before it, the Tribunal is not satisfied that he faced any restrictions practising his faith or that he was harmed in any way by the Vietnamese authorities for doing so. The Tribunal notes that normal Catholic Church activities have been reported in Nghe An Province and Nghi Loc Catholic parish in 2014. In September 2014, the Bishop of Vinh diocese said that since clashes in September 2013 dialogues have helped address the situation.[12]  The Union of Catholic Asian News’ (UCAN’s) webpage on Vinh Diocese, created in 2014, states:

   In recent years, the local Church has built new churches and facilities and revived old parishes and associations. The diocese aims to train catechists, lay leaders, priests and Religious. Diocesan committees and advisory, presbyteral, pastoral and finance councils are established. Funds for pastoral activities and flood victims are created.

   Another its [sic] top priority is evangelization. Local Catholics are urged to evangelize themselves, their families and other people.  …[13]

   [11] DFAT Country Information Report – Vietnam, DFAT , 21 June 2017, CISEDB50AD4597, p.12

   [12]  Radio Free Asia Vietnamese Service 2014, ‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia website, 10 September < UCAN [Union of Catholic Asian News] n.d. [page created 12/01/2014], ‘Diocese of Vinh’ at ‘General’ tab, UCAN directory. Database of Catholic Dioceses in Asia website < [accessed 19 November 2014] <CISNET BACIS CX1B9ECAB8097>.

3. DFAT reports the situation for Catholics has continued to improve over recent years, though there are still constraints on registering new churches. In the applicant’s home province of Nghe An, DFAT reports a slight improvement in the treatment of Catholics, mainly due to the increasing strength of the Catholic community and leadership.[14] If the applicant had attended the hearing the Tribunal would have put to him the most recent report by DFAT does not support the claim that all Catholics in Vietnam face harm from the authorities merely on the basis of their Catholic religion. Furthermore, while there are reports that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation, Catholics are able to practise freely at registered churches and bibles and other religious texts are readily available. DFAT’s latest report is generally consistent with earlier country information set out in the delegate’s decision and discussed with the applicant at the hearing with the previously constituted Tribunal.

   [14] DFAT Country Information Report – Vietnam, DFAT , 21 June 2017, CISEDB50AD4597, p.12

4. The Tribunal accepts, based on the evidence before it, that the applicant is of the Catholic faith and that he attended churches in the Vinh Diocese. On the available evidence, the Tribunal is not satisfied that the applicant has ever been harassed or intimidated or otherwise faced harm because of his religious observance and practice in the past. Looking forward, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm or significant harm for reasons related to his religious beliefs if he returns to Vietnam now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has ever been personally monitored, threatened, arrested, detained or interrogated by the Vietnamese authorities for reasons relating to religious beliefs and practices. The Tribunal is not satisfied that the applicant has previously attracted the adverse attention of the Vietnamese authorities for any of the reasons claimed.

5. Looking forward, the Tribunal is not satisfied that there is a real chance that the applicant will attract the adverse attention of the authorities if he returns to Vietnam now or in reasonably foreseeable future. The Tribunal is not satisfied that the applicant has engaged in any protest activity in the past. For the avoidance of doubt, on the evidence before it the Tribunal is not satisfied that if the applicant were to return to Vietnam he would be motivated to involve himself in activities that conflict with government policies or practices and which might lead to him attracting the adverse attention of the authorities. Having regard to available country information and what the Tribunal has accepted of the applicant’s claims and circumstances, the Tribunal is not satisfied that he faces a real chance of serious harm or significant harm or in the reasonably foreseeable future on account of his religion or his actual or imputed political opinion including any political opinion imputed to him for reasons related to his religious beliefs and activities.

Failed asylum seeker – illegal departure -- database breach – visits by Vietnamese officials

Failed asylum seeker who departed Vietnam unlawfully

1. On the evidence before it, the Tribunal accepts that if the applicant returned to Vietnam he would be identified as a failed asylum seeker who departed Vietnam unlawfully. Relevantly, DFAT reports that, consistent with earlier DFAT reports referred to be the delegate and the previously constituted Tribunal, that:

   5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.

   . . .

   5.21    DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. . .

2. Given DFAT’s advice that it is unaware of any cases where failed asylum seekers have been subjected to charges or prosecution under Article 91, and it has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Vietnamese government, on the available evidence the Tribunal is not satisfied that there is a real chance that the applicant will face harm if returned to Vietnam because he is a failed asylum seeker.

3. With respect to the issue of illegal departure, DFAT reports that:

   5.16 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.

   5.17 DFAT assesses 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 illegally departing Vietnam. While some returnees can 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 understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.[15]

   . . .

   5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government.  Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return.  Notwithstanding these fines, DFAT understands that people who have paid money to people smugglers are not subject to such fines.  DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.

   5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.

   [15] DFAT Country Information Report -- Vietnam, 21 June 2017, CISEDB50AD4597, p.24 5.16 and 5.17.

4. The Tribunal is prepared to accept that, if he returns to Vietnam, the Vietnamese authorities may assume he sought asylum in Australia after arriving here by boat. As noted above, DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government.  Furthermore, while Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return, DFAT understands that people who have paid money to people smugglers are not subject to such fines.  

5. The Tribunal is aware of media reports that indicate some people who have been returned to Vietnam by the Australian authorities have been detained, but the available information indicates that this is because those people have been investigated and charged in relation to people smuggling offences. [16] The Tribunal places weight on DFAT’s 2017 report that detention, investigation and arrest are conducted only in relation to those suspected of involvement in organising people smuggling operations and that, while returnees may be questioned about their knowledge of people smuggling operations, 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.[17]

   [16] See, for e.g. ‘Vietnam jails four asylum seekers returned by Australia’, The Guardian, 27 May 2016; see also Jessica Longbottom, ‘Vietnam jails four asylum seekers over voyage to Australia despite 'no retribution' promise’, ABC News, 26 May 2016.

   [17] DFAT Country Information Report -- Vietnam, 21 June 2017, CISEDB50AD4597, p.24

1. The applicant has not claimed (and there is nothing before the Tribunal to suggest) that he was involved in people smuggling operations or that the Vietnamese authorities would suspect him of such activity.  In the absence of a hearing in which the Tribunal could explore with the applicant why he fears harm for reasons relating to his status as a failed  asylum seeker or due to illegal departure from Vietnam in light of the country information of the above country information, the Tribunal is not satisfied that that there is a real chance that the applicant will face serious harm or a real risk of significant harm for reasons relating to the fact he left Vietnam illegally and/or because he would be returning to Vietnam as a failed asylum seeker.

Visit by Vietnamese officials to asylum seeks in Australian immigration detention

1. The Tribunal accepts that Vietnamese officials visited an Australian immigration detention centre and interviewed Vietnamese asylum seekers in August 2013 while the applicant was also in immigration detention.[18]  The delegate’s decision noted that the Vietnamese Immigration Department operates under the auspices of the Ministry of Public Security and is commonly referred to as the Ministry of Public Security – Immigration.  A community representative quoted in an SBS report, the Vietnamese secret police from the A18 section.[19]   The applicant’s consistent evidence has been that he was not interviewed by the Vietnamese officials although he suggested that other Vietnamese asylum seekers may have disclosed his name to officials. However, without further detail about why he believes he is at risk of harm as a result of the visits by Vietnamese officials to immigration detention centres, the Tribunal is not and cannot be satisfied that, even when taken together with what the Tribunal has accepted of the applicant’s claims and circumstances, that there is a real chance the applicant will face serious harm or significant harm because Vietnamese officials interviewed other Vietnamese asylum seekers in immigration detention in Australia.

Claims to have been affected by the database breach

[18]

[19]

1. The Tribunal accept that the applicant was in immigration detention at the time of the now notorious data breach in February 2014. On 19 February 2014, the Department of Immigration received information that a database containing the personal information of 'almost 10,000' asylum seekers was available on its website and the database was removed from the Department’s website later that day. Following the ‘data breach’ the Department commissioned KPMG to conduct an assessment of the “events leading up to the disclosure of personal information of detainees, in connection with a document uploaded to its website on 10 February 2014”.[20] The KPMG report notes that the data that was published on the Department’s website contained the personal information of ‘about 10 000 detainees’.  According to the Guardian, these personal details consisted of full names, gender, citizenship, dates of birth, when immigration detention began, the location of the immigration detention, and boat arrival details.[21]

   [20] KPMG, Management initiated review: Privacy breach – Data management,  Abridged Report, 20 May 2014. The Office of the Privacy Commissioner has undertaken an independent report into the breach: Office of the Australian Information Commissioner, Department of Immigration and Border Protection: Own motion investigation report, Nov 2014.

   [21]E.g, O Laughland, P Farrel, Asher Wolf,  ‘Immigration Department data lapse reveals asylum seekers' personal details’,  The Guardian Australia, 19February 2014.

2. KPMG reports the information was not accessed by IP addresses in Vietnam. This does not exclude the possibility that it was accessed by Vietnamese officials in Australia or elsewhere. However, even if it is accepted that the Vietnamese authorities somehow became aware of the information about the applicant as a result of the data breach, the information released did not contain details of his protection claims. Given the categories of personal information outlined above and the fact that, at the time the database breach occurred the applicant had not yet lodged his protection visa application, the Tribunal is not satisfied that the Vietnamese authorities would be aware of his specific claims for protection. On the evidence before it, the Tribunal has insufficient detail as to why the applicant fears any harm on account of the Department’s privacy breach in circumstances where the applicant had not lodged a protection visa application at the time of the data breach, and even if it is accepted the Vietnamese authorities are aware he claimed asylum in Australia, the available country information does not support the proposition that failed asylum seekers face a real chance of serious harm or significant harm.

3. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm or significant harm if he returned to Vietnam because of the disclosure of his personal information in the privacy breach or because he will be identified as a failed asylum seeker or because he left Vietnam unlawfully and was in immigration detention in Australia or because Vietnamese officials interviewed other Vietnamese asylum seekers in immigration detention or for some combination of these reasons. 

Conclusions

1. On the available evidence, the Tribunal is unable to be satisfied that the applicant was ever involved in organising or attending protests in July 2012 or at any time. The Tribunal is not satisfied that the applicant was involved in protests on 14 and 15 July 2012 or that members of a youth group of which he was part were beaten in the aftermath of these protests or that the applicant was summoned by police or that he ever attracted the adverse interest of the Vietnamese authorities. The Tribunal is not satisfied that he was required to report to the police and/or the village committee or that the police went to his home looking for him or that they threatened his brother as claimed. The Tribunal is not satisfied that the applicant had any involvement in a parish youth group that organised protests against the repression of Catholics in Vietnam or that he was otherwise involved in organising or participating in any protest activity.  On the available evidence, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm or significant harm if he returns to Vietnam now or in the reasonably foreseeable future any reason relating to his Catholic religion, or any political opinion imputed to him because of his Catholic religion.

2. On the available evidence, the Tribunal accepts that the applicant is a practising Catholic from Nghe An province who has travelled abroad and sought asylum in Australia. As noted above, the Tribunal accepts he was affected by the data breach and that whilst he was in immigration detention fellow asylum seekers were interviewed by Vietnamese officials who visited the immigration detention centre.  On the available evidence and having regard to what it has accepted of the applicant’s claims and circumstances, the Tribunal is not satisfied that there is a real chance that the applicant will be subject to serious harm in Vietnam for reasons of his religion, and or his actual or imputed political opinion, his membership of a particular social group (such as failed asylum seekers or failed asylum seekers returning from a Western country) or any other reason, now or in the reasonably foreseeable future. The Tribunal does not accept the applicant has a well-founded fear of persecution for any Convention reason if he returns to Vietnam, now or in the reasonably foreseeable future.

3. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm.  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: MIAC v SZQRB.[22] On the available evidence and having regard to its findings of fact set out above, 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined.  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 for the purpose of s36(2)(aa).

   [22] [2013] FCAFC 33

CONCLUSION

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

2. 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).

3. 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

1. The Tribunal sets aside the decision to refuse to grant the applicant a protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Frances Simmons
Member