1617666 (Refugee)

1617666 (Refugee) [2018] AATA 3142 (31 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617666
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Christopher Smolicz
DATE:31 May 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 31 May 2018 at 11:42am

CATCHWORDS
Refugee – Protection Visa – Vietnam – Religion – Catholic – Imputed political opinion – Anti-government political opinion – Fears serious harm from the authorities – Personal information was disclosed by the Department – Failed asylum seeker – Not a political or religious activist – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424A, 499

Migration Regulations 1994, Schedule 2
CASES

MIAC v SZQRB [2013] FCAFC 33
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 on 7 October 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 on 23 December 2015.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The first-named applicant (the applicant) was born in [Nghe] An Province, Vietnam.
He arrived in Australia on 19 March 2011 by boat with no documentation.
Soon after arriving in Australia the applicant met Mrs [A] at [a location]. Mrs [A] arrived in Australia with the applicant, travelling on the same boat. The applicant claims he had not met Mrs [A] before they arrived in Australia. On 16 February 2014 the applicant and Mrs [A] married. They have had two children, born in Australia: [Child 1], born on [date] (the second-named applicant) and [Child 2], born on [date] (the third-named applicant).
On 23 March 2011 the applicant took part in an Entry Interview with an officer of the Department of Immigration (the Department). He claimed to be an orphaned minor, born [birth date].
On 24 June 2011 the applicant escaped from immigration detention. He travelled to [State 1] where he worked as [an Occupation 1].
On 4 April 2012 Mrs [A] escaped from immigration detention, travelled to [City 1] and got in contact with the applicant.
On 12 July 2012 the applicant and Mrs [A] were subsequently caught by the authorities and released into community detention.
On 23 December 2015 the applicant and Mrs [A] applied for a XE-790 Safe Haven Enterprise visa (SHEV) which is the subject of the current application. The applicant and Mrs [A] made individual claims for protection and have also claimed protection on behalf of their children who were born in Australia.
The applicant provided a declaration in which he admitted that he made false claims when he first arrived in Australia.
The delegate assessed the applicant’s claims and did not find him to be a credible witness and refused to grant him a protection visa. As a consequence Mrs [A] and her two children were unable to satisfy s.36(2)(b) or (c) of the Act and visas were refused.
On 25 October 2016 the applicants applied to the Tribunal to review the delegate’s decision. The Tribunal conducted a hearing with the applicant on 21 March 2018. The Tribunal conducted a separate hearing with Mrs [A] and has made a separate decision in relation to her claims.
New issues
The issue raised by the applicant is whether he meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·     Of his Catholic religion;
·     His imputed political opinion as opposed to the government;
·     His personal information was disclosed by the Department (data breach);
·     He is a failed asylum seeker who departed Vietnam without lawful authority.
The Tribunal has also assessed the claims made on behalf of the applicant’s children (the second and third named applicants) on the basis that they were born in Australia and do not hold any Vietnamese identity documents and they will be orphaned if he and his wife are both imprisoned. The Tribunal has also considered the claims of the children by reference to s.36(2)(b) or (c) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of substantive claims
The applicant claims to be a citizen of Vietnam born on [a different date of birth]. He admitted that he previously provided false information about his age and family circumstances.
The applicant declared that in the period May 2006 to January 2009 he travelled to [Country 1] for work. He travelled as the holder of a Vietnamese passport. He threw the passport away because it expired.
He met his wife [at a location] and they married in Australia in early 2014. Both the children were born in Australia and have no Vietnamese identification documents.
His entire family practice the Catholic faith. The Vietnamese government is Communist and opposes their religion and his political opinion differs from that of the government. He claims he has faced persecution and harm due to his faith and political opinion.
As a Catholic he has no basic human rights. Catholics have been and continue to be oppressed by the government and authorities. The government continues to take land from the church.
The applicant declared that a lot of the information that he provided in his entry interview [23 March 2011] was incorrect and not entirely true. He claims he gave the false information because there were a “lot of official people” and he was scared the information would prejudice his claims. He was scared that the government of Vietnam and Australia are connected and that the Vietnamese government would find out he is a Catholic. He claims it was for this reason that he provided incorrect information about his family and his background. He claims he did not want his family to be harmed in Vietnam. Now that he has been in Australia for a while he feels safer and more trusting. He has also been given an opportunity to understand Australian legislation in relation to his asylum claims.
The applicant claims he has come to the attention of the Vietnamese authorities on the following occasions.
Incident 1
On 26 July 2009 the Catholic community assembled at a [Church]. The applicant claims he was present and was assigned the role of [Occupation 2] on that day. There were about 200 to 300 people attending the mass. He was required to welcome a group of 20 to 30 handicapped people from the street to the church. About 30 minutes after the mass commenced, two uniformed officials and six plainly clothed people came to the mass and took photographs of the congregations and the people present. He was instructed to block their way. He claims to have said “sorry you cannot enter as this is a private event for Catholic worshippers.” The people told him “do you want to die or do you want to go to prison?”
The people saw his badge which identified him as a [Occupation 2]. He did not let the people in and they pushed and kicked him trying to force themselves into the church. They kept saying “do you want to go to prison and we will force you to go to prison if you do not let us in.”
Other people in the church heard the commotion and came to see what was happening. There were a number of people; the perpetrators left and got into their car.
The applicant claims that as the perpetrators were getting into the car they threatened him and said “you better be careful or we will put you in prison.”
He claims that the congregation began a peaceful march with banners outside the church and walked for some distance.
Incident 2
That night members of the congregation came together at the church and lit candles. The applicant said he was part of a group of 40 people [working in Occupation 2].
Two cars stopped about 700 metres outside the main gate. There were four people that came out towards him. They pushed, beat and punched him. He claims he could see the face of two of the people; the others had their faces covered. The perpetrators left. The applicant did not know who the attackers were.
The applicant claims the Department has pictures of his injured face and scars and bruising taken when he first came to Australia.
Incident 3
The applicant claims that two days later two policemen came to his home at around 11 am asking him to take part in an interrogation about the incidents on 26 July 2009. The applicant claims he told them that he needed to change his clothing and brush his teeth because he had just woken up. He was forced to go with them. They asked him “what was the reason for not letting the officers into the church on that day? Why are you doing these things against the government?” They hit the table and tried to intimidate him. He was interrogated for about one hour and kept in the room for 24 hours.
The applicant claims he said that he was fighting for the church and the Government was just trying to take the church lands and abuse his people. The officers told him “shut up and one day [I] would be sitting in prison.”
Incident 4
On 23 March 2010 the Father asked everyone in the parish to pray for[Church 2]. That day the applicant and others travelled to [Church 2] to pray. There were two people in the car and they had banners stating “We demand freedom”, “Give back freedom to the Church” and “Give back land to the Church”. There were many other cars travelling and they also had banners.
They were stopped by the police and asked where they were going. The applicant told the police “we are fighting for freedom for the parish”. The police pointed at him and asked “are you the leader of these people?” The applicant claims he replied “Yes”.
The police came to the car, took the banners and kicked them and caused trouble. The police had batons and electric zappers. The applicant claims he did not see the police use them but he claims they also had something sharp in their hands to punch and push people.
The applicant claims he said to the police “what right do you have to punch and push these people around?” He claims he was grabbed by the hair and the police said “are you[the applicant’s name]?” He was slapped, handcuffed and thrown in the car.
A rich man from the church came and paid a bribe to the police to release him. Before the police came they pointed at his face and said “be careful”.
The applicant claims his congregation continued to go to [Church 2] and a few people took him home. The parishioners told him to be careful and keep a low profile.
Incident 5
Two days later he was travelling on his motorbike with his mother. Two plain clothed policemen on motorbikes kicked them and they fell on the side of the road near a tree.
At 3.30 pm on the same day four policemen came to his home and demanded to take him. He was not at home at the time. His sister called him and told him not to come home because the police were looking for him.
Saigon
The next day he travelled to Saigon. Life in Saigon was very hard and he did not have any paper work or proof of identification. He did not want to use his identity documents because he feared he would be found by the authorities. He claims the authorities knew he was involved in the fight for justice for the church. The authorities could not locate him in Saigon and he moved from place to place. He claims he is on a government watch list.
Someone in the parish called him and told him to flee the country. The person asked him “do you want to go to Australia?” The applicant said he had no money and the person told him he would go by boat. The applicant claims he agreed to go because he would rather die at sea than in prison. He left Vietnam on 28 February 2011.
The applicant claims if he returns to Vietnam he will be arrested and imprisoned because of his Christian faith.
He claims he has a reputation of being anti-government and will be imprisoned for his political opinions.
He claims that due to the privacy/data breach, the authorities in Vietnam know he is in Australia and that he has sought protection.
He claims his two children do not have any Vietnamese identity. He claims that when he and his wife are imprisoned their children will be put in an orphanage and will not have access to proper education. They will face great difficulty until they turn 18 years old. He and his wife will not be able to practice their religion in Vietnam.
The applicant provided a further declaration dated 8 March 2018 in response to the findings. The applicant also provided comment on DFAT’s country information report on Vietnam referred to by the delegate.
The applicant provided a translated document entitled “Summons Notice” dated 11 August 2014. The summons is addressed to [the applicant’s mother] and demands that she attend the police station to clarify matters in relation to “ [the applicant’s brother] and [the applicant] who have illegally fled the country”. The document purports to be signed by the Chief of [Village 1] Police.
The Tribunal was also provided with photos of the candlelight vigil held at [Church 1] on 26 July 2009 and protest activity.
Tribunal hearing
The applicant said he travelled to Australia by boat in March 2011 because he feared for his life in Vietnam. The boat trip was organised by a [friend]. He did not pay any money and everything was arranged for him.
The applicant said that his brother [also] came to Australia but travelled by a different boat. No evidence was provided about the brother, his personal circumstances and why he left Vietnam. The Tribunal asked the applicant if his brother is giving evidence. The applicant said his brother was in [City 1] and is not giving evidence.
The applicant said he worked as [an Occupation 3] in Vietnam. In 2006 he travelled to [Country 1] for work on a three year contract organised by an agent. He travelled to [Country 1] on a Vietnamese passport.
The Tribunal asked the applicant if he could produce his passport. The applicant said that he lost his passport when he was working [in] Australia. He could not recall the date. The Tribunal asked the applicant if he used his passport to travel to Australia. The applicant said he left his passport in Vietnam. He claims his mother has subsequently posted his Vietnamese passport to him in Australia. He has used the passport to apply for a driver’s licence in Australia.
The Tribunal asked the applicant to explain the circumstances in which he lost his passport. The applicant provided a number of different explanations. The applicant first said that his wife was pregnant and he had to take her for a medical test. He went to a friend’s house and asked about food that was safe for pregnant women to eat. He claims that that eventing he and his wife were located by the Department and he was “arrested”. After further questioning the applicant said that he left his passport in his bag on the [workplace] where he was working. Officers attended the [workplace] and he was arrested. He left his bag with the passport at the [workplace]. He claims he reported the loss of his passport to the Department.
The Tribunal has had regard to the applicant’s protection visa application form (question 54) and notes that the applicant claimed that the passport had expired and he discarded it.
During his protection interview the applicant said that when he returned from [Country 1] in about March 2009 his passport had expired and it was destroyed by the authorities at the airport in Vietnam.
The Tribunal finds the applicant’s evidence about his Vietnamese passport inconsistent and lacking credibility. The Tribunal put the inconsistent information to the applicant for his comment and response pursuant to s.424A of the Act.
The applicant claimed he had a valid Vietnamese passport when he travelled to [Country 1]. When he returned to Vietnam it had expired so he gave it to the authorities who destroyed it and issued him with a new one. He claims the passport was not discarded at the airport. He claims he did not bring his new passport when he travelled to Australia. When he needed an identity document in Australia his mother posted him the passport and he applied for a driver’s licence. He claims he lost the new passport when he was working [in] Australia. He was too scared to report it to the police.
The Tribunal questioned the applicant about his declaration dated 23 December 2015 where he admits that he provided false information when he first arrived in Australia.

The applicant said he was born on [date of birth] and when he arrived in Australia he lied about his age and said he was born on [a different date of birth].
The Tribunal asked the applicant why he lied about his age. The applicant said that in Vietnam the government followed him and tried to arrest him and he did not want to reveal his true identity.
The Tribunal asked the applicant on a number of occasions if he could explain what other information he provided in his entry interview was untrue. The applicant said he claimed to be an orphan living with his grandmother. He could not recall other information that he had provided that was not true.
The Tribunal referred the applicant to the evidence he gave during his protection interview and asked him to confirm what information was true and what was false.
In response to the Tribunal’s questions the applicant confirmed that the following information provided in his entry interview was false:
a)    In relation to his boat trip to Australia he confirmed that he falsely stated that his grandmother packed his bag and told him to go fishing and that he did not know that he was travelling by boat to Australia.
b)    He incorrectly stated that he has never taken part in any activities or protests against the Vietnamese government.
c)    He incorrectly stated that the police, security or intelligence organisations did not impact on his day to day life in Vietnam.
d)    He incorrectly stated that he had never been arrested, or detained by the police or security forces in Vietnam.
The applicant claimed that when he was given the opportunity to apply for a new protection visa he had been in Australia for four years. He had lived in Australia long enough to understand how the government worked and he felt he could now trust the authorities. He claims he now understands the importance of telling the truth.
The Tribunal questioned the applicant about his Catholic faith.
The applicant said his parents were Catholic and he was born into the Catholic faith. He belonged to [Church 1]. The congregation was made up of 40 to 50 people. He would attend church service six days a week Monday to Saturday. On Sunday he would stay at home so that his mother could go to Church. He claimed he took part in teaching young children about the Bible and worked as [an Occupation 2] for the church. His parish priest was called [Mr B] but the priest had since changed.
The Tribunal referred the applicant to a translated letter entitled “Confirmation Letter” that he provided to the Department in support of his application. The letter purports to be written to [Church 1] priest by the applicant’s parents. The letter makes no reference to the incidents that the applicant claims occurred in in 2009 and 2010.
The Tribunal notes that the letter purports to be dated 20 March 2013. The Tribunal told the applicant it found it unusual that he would provide the Department with a letter dated March 2013 when he lodged his protection visa application in December 2015.
The applicant said that he was asked by a Departmental officer if he had any documents to support his claim. The Tribunal noted that he was only invited by the Department to apply for protection in October 2015. The Tribunal told the applicant it was concerned if the confirmation letter was genuine.
The Tribunal questioned the applicant about a translated document entitled “Summon Notice” dated 11 August 2014 which was provided to the Tribunal on 12 March 2018.
The applicant said that when his application for refugee status was rejected he telephoned his mother in Vietnam. His mother told him not to come home because the police were causing trouble and summonsed her. She told him about the summons. He asked his mother to send it to him in Australia.
The Tribunal noted that the summons was dated 11 August 2014 but it was only provided to the Tribunal a few days before the hearing.
The Tribunal asked the applicant when he spoke to his mother and found out about the summons. The applicant said it was when his application was rejected.
The applicant also said that when he was interviewed by the Department he wanted to provide some photos and documents and was told it was not necessary.
The Tribunal told the applicant it was surprised by his evidence because he had an agent representing him at the time he lodged his application and he did provide evidence to the Department such as the letter from his parents to the priest in Vietnam. The applicant said that when he talked to his mother he did not think the document was necessary and therefore he did not provide it to his lawyer until recently.
The Tribunal questioned the applicant about the summons. The applicant said the summons is addressed to his mother and the police wanted to ask her questions about her sons who escaped from Vietnam illegally. The Tribunal asked if his mother responded to the summons and attended the police station. At first the applicant said his mother did not attend, she cried and was arrested. The applicant said his mother told the police that her sons were no longer at home and had disappeared.
The Tribunal asked the applicant when he found out that his mother had spoken to the police. The applicant said he telephoned his mother and she was worried about his safety if he returned. She begged him not to return because the police were causing so much trouble for him in Vietnam. The applicant then changed his evidence and said that his mother was not arrested because she was old and she was not forced to attend the police station.
The Tribunal asked the applicant if this was the first time the police questioned his mother about him. The applicant said the police had spoken to his mother about him on many occasions. The Tribunal asked the applicant if he knew what prompted the police to serve the summons on his mother in 2014 given that he left Vietnam in 2011.
The applicant said that the police had served many summonses in the past. His mother did not keep any and destroyed all the documents. The Tribunal asked the applicant why she would keep the summons from 11 August 2014. The applicant said that it was left in the wardrobe and his mother told him about it when he called her.
The Tribunal asked the applicant if he knew how the police found out in August 2014 that he had fled Vietnam illegally. The applicant said he would attend church in [a suburb in Australia] and took part in protest activity in the city and he thinks there were Vietnamese security men in disguise in Australia. The Tribunal asked the applicant if he had any evidence to support his belief. The applicant did not provide further information to support his claim.
The Tribunal found the applicant’s evidence about the summons and his mother’s dealings with the police in Vietnam inconsistent and lacking in credibility. The Tribunal has also had regard to DFAT country information which confirms that document fraud is common in Vietnam.[1] The Tribunal does not accept the summons is a genuine document issued by the police in Vietnam in August 2014. The Tribunal does not accept the applicant’s mother was questioned by the police or issued with any summons.
[1] DFAT Country Information Report Vietnam 21 June 2017 [5.30-5.32]
The applicant claimed that the authorities in Vietnam have his name on their file because he was fighting for justice for the church. The applicant recounted the evidence detailed in his statement of claim regarding his involvement in the Catholic Church and how he had come to the attention of the authorities, was questioned, beaten and detained.
The applicant maintained that on the evening of 26 July 2009 he was performing [Occupation 2] duties for his church and he came to the attention of the police and was beaten by them. He claims he was pushed to the ground, kicked and punched in the face and this was the first time he was assaulted by the police.
The Tribunal referred the applicant to his statement where he claimed the Department has photographs of his injured face, scars and bruising when he first came to Australia. The applicant claimed he told the Department he would like to have provided the photographs but he did not have any. He claims when he first arrived in Australia, the Department took his identification picture and the scars were still visible. The Tribunal notes that when he first arrived in Australia he did not disclose that he was assaulted by the police, detained and interrogated. The Tribunal notes that the applicant first arrived in Australia in March 2011 and it seemed unusual that the Department would have pictures of injuries which he sustained in 2009.
The Tribunal discussed with the applicant his evidence where he details his interaction with the police on 23 May 2010. The Tribunal asked the applicant why he would identify himself to the police as the “leader” of the group when in the previous month he was summonsed, interrogated, beaten and detained by the police. The applicant claimed he was carrying the banners and no one else spoke out. The Tribunal observed that according to his statement there were many other people with banners. The applicant agreed that he was not a leader. He claimed when the police took away the banners no one in the group said anything and he was questioning their authority to take away the banners and spoke out. The Tribunal finds it difficult to accept that the applicant would voluntarily identify himself as leader to the police in circumstances when he had previously been summonsed, beaten and interrogated by the police.
The Tribunal questioned the applicant about the circumstances in which he travelled to Australia. The applicant said that he left Vietnam illegally and did not bring his Vietnamese passport to Australia. He did not pay any money to travel to Australia and someone arranged the trip for him. He claimed that his mother has subsequently sent his passport to him in Australia so that he could apply for a driver’s licence.
The applicant said he could not produce his Vietnamese passport to the Tribunal because he had lost it when he was working [in] Australia. He could not recall the date. The Tribunal notes that in his protection visa application he declared that the passport had expired and he discarded it. In his protection interview he said that when he returned to Vietnam in about March 2009 after working in [Country 1] his passport was destroyed by the Vietnamese authorities at the airport because it had expired.
The Tribunal finds that the evidence the applicant provided about his Vietnamese passport is inconsistent. The Tribunal raised these inconsistencies with the applicant in a letter issued pursuant to s.424A of the Act.
The applicant maintained he had a valid passport when he travelled to [Country 1]. He claimed the passport expired so he gave it to the authorities who destroyed it and he was issued with a new passport. His mother sent him the new passport to Australia because he needed an identification document when he applied for his driver’s licence. He claims he subsequently lost his passport working [at a workplace] and was too scared to report this to the police.
The Tribunal finds the applicant’s evidence that he lost his passport in Australia lacking in credibility. The Tribunal finds that the passport would contain relevant information to verify his identity and his travel history before he came to Australia. The Tribunal also finds that the fact the applicant was able to travel to [Country 1] for work and was subsequently issued with a new Vietnamese passport suggests he was not a person of interest to the Vietnamese authorities at that time.
The Tribunal questioned the applicant about the photographs he provided in support of his application. The Tribunal found the applicant’s evidence vague and lacking in credibility. The applicant claimed the photos came from his church and were sent to him by his mother. He could not remember when. He said the photos are of his church in Vietnam and were taken on the day he was apprehended by the police. He subsequently said that the photos were provided to the Department with the letter from his parish priest but the Department told him they did not need the photos. The Tribunal notes the confirmation letter makes no reference to the photos. After further questioning, the applicant said the photos are also available on the internet but he did not get them from the internet.
The Tribunal has considered the photographs submitted by the applicant. Some of the photos appear to be of the [Church 1] and depict a peaceful candlelight vigil. Other photos appear to relate to the peaceful march/procession where people are holding banners with references to the Tam Toa Church. The Tribunal finds that the photos are of limited assistance in assessing the applicant’s claims.
The Tribunal has had regard to country information and accepts that there were a number of clashes between Catholic parishioners and the authorities related to the expropriation of land by the authorities from Catholic communities in the Vinh Diocese, Nghe An Province.[2]
[2] Report on Violations of Religious Freedoms in Vinh Docese, Nghe An Vietnam – To: Special Rapporteur of the United Nations on Freedom of Religion or Belief, p.2, >
In particular reports confirm there have been ongoing disputes between the government and the rebuilding of the Tam Toa church which was bombed during the Vietnam War. The Diocese of Vinh and the Archdiocese of Huế have been trying to reclaim the ruins of the church since 1996 when it was taken back by the local government in an attempt to turn it into a war symbol of American aggression.[3]
[3] >
The Tribunal has had regard to the reports and finds that the dispute between Catholic parishioners and the authorities related to a dispute over church land which the government wanted to use as a memorial site. Reports confirm that an agreement was reached apparently to the satisfaction of both parties whereby an alternate land site had been given to the Catholic Church for a church to be built. [4]
[4] of claims
The Tribunal has a number of concerns about the applicant’s evidence, which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to his experiences in Vietnam, his reasons for leaving Vietnam and his fears about returning to Vietnam. The Tribunal’s concerns are discussed below.
As detailed above the applicant took part in an Entry Interview soon after he arrived in Australia. The interview commenced at 8.45 am and concluded at 11.10 am. The interview was conducted with the assistance of an interpreter in the Vietnamese and English languages. A representative from [an organisation] was also present at the interview.[5] The applicant was advised that the purpose of the interview was an opportunity to provide reasons why he should not be removed from Australia.
[5] [Organization details deleted]
The applicant was asked specific questions to determine why he left his country of nationality. He was questioned about his association with political groups, his involvement in anti-government protest activity and his religious activism. He was questioned about the impact of police on his day to day life. He was asked if he had ever been arrested or detained by the police. He was told that he is expected to give true and correct information and that if the information he gives at any future interview is different this could raise doubts about the reliability of what he says.
The Tribunal finds that when the applicant first arrived in Australia, he provided the following false information about his date of birth, his family and the arrangements made for him to travel to Australia:
· He was born on [date of birth] and both his parents were deceased.
· In relation to the boat trip to Australia he stated that his grandmother packed his bag and told him to go fishing and that he did not know that he was travelling by boat to Australia.
The Tribunal finds the applicant provided the following evidence in his Entry Interview which is inconsistent with the evidence he provided in his protection visa application:
·     He has never taken part in any activities or protests against the Vietnamese government.
·     The police, security or intelligence organisations did not impact on his day to day life in Vietnam.
·     He has never been arrested, or detained by the police or security forces in Vietnam.
·     He did not want to return to Vietnam because life is very difficult and he did not have a future there.
The applicant now claims that he did come to the adverse attention of the Vietnamese authorities (police) because of his involvement in the Catholic Church in Vietnam. He claims that as a result of his involvement with the Catholic Church he is perceived to be opposed to the Vietnamese government. He claims he has been detained, interrogated and beaten by the police in Vietnam. He claims that he has been summonsed by the police on numerous occasions in Vietnam. He claims he is on a watch list. He claims he had to flee Vietnam because he fears serious harm from the authorities.
The Tribunal raised these inconsistencies with the applicant at the hearing and in a letter issued under s.424A of the Act. The Tribunal has considered the applicant’s explanations for providing the false claims when he first arrived in Australia. The Tribunal does not accept the applicant’s explanation that he did not disclose the truth about his claims because he was scared and thought the Government of Vietnam and Australia were connected and his claims would be disclosed.
The Tribunal is aware that an Entry Interview is not an application for a protection visa. The Tribunal is also mindful about the weight it should place on information that is provided in an Entry Interview which is usually conducted soon after an applicant arrives in Australia in circumstances where they may be nervous and may be distrustful of government officials. The Tribunal accepts that such factors may impact on the level of detail that asylum seekers provide in circumstances where they have little knowledge of the refugee application process. The Tribunal also accepts that it is not uncommon for asylum seekers to expand on their evidence and provide addendum statements, in which they seek to provide further details after they have had an opportunity to recall evidence, refresh their memory and obtain migration advice. The Tribunal finds however that it has to exercise caution when an applicant provides false information and subsequently changes their evidence and claims. Having considered the applicant’s evidence the Tribunal does not accept the applicant is a credible witness. The Tribunal finds that the evidence provided by the applicant in support of his protection visa application is false.
In assessing the applicant’s claims the Tribunal accepts he is from [Nghe] An Province in Vietnam. The Tribunal has assessed the applicant’s claims against Vietnam as the receiving country.
In assessing the applicant’s claims the Tribunal finds the applicant is not an organiser or leader in his local Catholic parish. He is not a political or religious activist. The Tribunal does not accept the applicant’s evidence that he was assigned to undertake [Occupation 2] duties at his local parish and came to the attention of the authorities.
The Tribunal does not accept the applicant had any involvement in organising any march or protest activity associated with the [Church 2], Vietnam. The Tribunal does not accept the applicant spoke out and addressed the police. The Tribunal does not accept the applicant took part in any protests or marches organised by the Catholic Church in Vietnam. The Tribunal does not accept the applicant had come to the attention of the Vietnamese authorities/police and was summonsed, interrogated, assaulted and detained. The Tribunal does not accept the applicant is on a watch list and the police have issued a summons to his mother and questioned her since he has travelled to Australia.

The Tribunal does not accept the applicant had to travel to Saigon to escape from the authorities in his home area. The Tribunal finds the applicant has made false claims and provided inconsistent evidence in relation to his profile with the authorities in Vietnam.
The Tribunal finds that the applicant is not a person of interest to the authorities in Vietnam because of his religious beliefs and/or imputed political opinion as someone who is opposed to the Vietnamese government.
Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Vietnam because of his actual or imputed political opinion. His fear of persecution is not well-founded. As a consequence the Tribunal also finds that there is not a real chance that the applicant’s children and his wife will face persecution because of his involvement in the Catholic Church and because of his anti-government political profile in Vietnam.
Catholics in Vietnam
The Tribunal has also considered whether the applicant and his children would face persecution in Vietnam because of their Catholic religion. The Tribunal accepts the applicant is a Catholic and that his children are Catholic and have been baptised in Australia. The Tribunal accepts the applicant and his children will attend church and continue to practice their religion in Vietnam.
In assessing the claim the Tribunal has had regard to the following information prepared by DFAT regarding Catholics in Vietnam:
Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country. [6]
[6] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]
The Tribunal has considered media reports provided by the applicant’s agent including information prepared by Dr Peter Hanson.[7]
[7] Dr Peter Hanson, Lecturer, History of the Church in Asia, Catholic Theological College Melbourne, dated 2 September 2011
As detailed above the Tribunal finds that the applicant did not perform [Occupation 2] work at his local church. He did not take part in any protest marches in Vietnam and is not a person who has come to the attention of the authorities because of his religious beliefs or protest activity.
The Tribunal has had regard to DFAT’s most recent country information report, which states that Catholics are able to practise freely at registered churches, and 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 Communist Party of Vietnam and its policies.[8]
[8] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]
The Tribunal also finds that current country information provides a more optimistic outlook for Catholics in Vietnam.[9] According to a report from the UN Special Rapporteur on freedom of religion or belief, the relationship between Vietnam and the Vatican has improved markedly in recent years.[10]
[9] 2017 Annual Report, US Commission on International Religious Freedom, April 2017, CISEDB50AD3969, p.116
[10] Report of the Special Rapporteur on freedom of religion or belief, ‘Heiner Bielefeldt – Addendum: Mission to Viet Nam (21 to 31 July 2014)’, UN Human Rights Council, 30 January 2015, p.13, CISEC96CF13238
Having regard to the applicant’s profile as an ordinary Catholic parishioner from Nghe An Province who does not have an adverse profile with the authorities, the Tribunal finds the applicant is able to freely practice his Catholic religion in Vietnam without fear of persecution.
In conclusion, the Tribunal is not satisfied that the applicant or his children would face serious harm if they were to return to Vietnam in the reasonably foreseeable future because of their Catholic religious beliefs. Their fear of persecution because of their religion is not well-founded.
Data breach
The applicant fears that his personal information has become known to the Vietnamese authorities because of a Departmental data breach and this will put his life in danger.
The Tribunal is aware that on 21 February 2014, the Australian Information Commissioner opened an own motion investigation into the Department following a media report that a database containing the personal information of approximately 10,000 asylum seekers was available on the Department’s website. The Commissioner came to the view that the Department had breached the Privacy Act 1988 by failing to put in place reasonable security safeguards to protect the personal information it held against loss, unauthorised access, use, modification or disclosure and against other misuse. [11]
[11] Department of Immigration and Border Protection: Own motion investigation report >
On 13 March 2014 the Department wrote to the applicant to inform him that there had been unauthorised access to his personal information. The Department’s letter confirms that in February 2014 a routine report released on the Department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014.
The Department’s letter confirms that the information that was released was limited to names, date of birth, nationality, gender and details about an applicant’s detention (when detained and reasons for location). The information did not include any information about protection claims. The Department has also advised that the information released in the data breach was only available for a short period of time before it was removed.
According to a report in the Guardian newspaper, citing KPMG as its source[12], the information was not downloaded in Vietnam.[13] The Tribunal finds there is no evidence that Vietnamese authorities accessed the information.
[12] KPMG were commissioned by the Department to independently review and report on the breach
[13] and
The Tribunal discussed this information with the applicant at the hearing. The applicant maintained that his profile would be known to the authorities in Vietnam because he had taken part in protest activity in the past.
The Tribunal accepts that the applicant was in community detention at the time of the ‘data breach’ and some of his personal information could potentially be accessed by third parties due to the breach. The Tribunal also notes that the applicant has admitted that when he first arrived in Australia he had provided false information to the Department about his family background and date of birth. The Tribunal notes that the Departmental data breach occurred before the applicant lodged his current claim for protection. In the circumstances the Tribunal finds there is no possibility that his current claims could have been disclosed as a result of the data breach. The Tribunal also finds that there is no connection between the data breach and the summons which was purportedly served on the applicant’s mother on 11 August 2014. As detailed above the Tribunal finds that the summons is not a genuine document.
Looking into the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant would face persecution from the Vietnamese authorities because the authorities would have knowledge of his refugee claims made in Australia. The Tribunal finds that the applicant’s fear of persecution because of his imputed political opinion as anti-government is not well founded.
Failed asylum seeker from a Western country who departed Vietnam illegally
The Tribunal acknowledges that if the applicant returns to Vietnam it would be apparent to the Vietnamese authorities that he left Vietnam illegally. In the circumstances the Vietnamese authorities may well infer the applicant was in Australia seeking protection and is returning as a failed asylum seeker.
The Tribunal has therefore considered whether there is a real chance the applicant would be detained and mistreated, in a manner amounting to serious harm, upon return to Vietnam because he departed Vietnam illegally and is a failed asylum seeker who unsuccessfully sought asylum in Australia (imputed anti-government political opinion). The Tribunal has also considered this claim under the complementary protection criteria.
In assessing these claims the Tribunal has had regard to DFAT’s country information report on the treatment of returnees to Vietnam:
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’.
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.
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. [14]
[14] DFAT Country Information Report Vietnam 21 June 2017 [5.15 -5.17]
The applicant’s agent referred the Tribunal to a media report where at least four returned asylum seekers were jailed in 2016 for departing Vietnam without approval. The Tribunal was also referred to an Amnesty International Report which documented the same incident.[15]
[15] Election 2016: “Boat migrants ‘turned back to jail’ despite Vietnamese promise”, 24 May 2016, >
The Tribunal notes that people who were charged were identified as organisers and were charged with “organising for others to flee abroad illegally” under Article 275 of the Penal Code. As detailed above DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.^[16]
[16] “Boat migrants ‘turned back to jail’ despite Vietnamese promise”, 24 May 2016, see also, DFAT Country Information Report Vietnam 21 June 2017 [5.15 -5.17]
The Tribunal also notes that the provisions of the decree that deal with irregular departure are not expressed in discriminatory terms and can be considered laws of general application with the legitimate purpose of regulating entry and exit of people to and from Vietnam.
The Tribunal has also had regard to the following information regarding the conditions faced by returnees to Vietnam:
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 organisers of people smuggling operations 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.
DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.[17]
[17] DFAT Country Information Report Vietnam 21 June 2017 [5.21-5.22]
At the hearing the applicant said he had no involvement in organising the trip to Australia and was not intercepted at sea by the Australian authorities. He is not a people smuggler.
The Tribunal has had regard to the applicant’s profile and DFAT’s report and is not satisfied that the applicant will be imprisoned by the Vietnamese authorities because he departed Vietnam illegally and travelled by boat to Australia. As a consequence the Tribunal does not accept there is a real chance that the applicant’s children will become orphans because the applicant will be imprisoned in Vietnam.
As detailed above the Tribunal does not accept the applicant had come to the attention of the Vietnamese authorities because he is a Catholic who took part in marches and or that he was summonsed by the authorities and is on a government watch list.
The Tribunal finds that in the absence of a more significant profile, such as being a people smuggler or known political activist, the chance of the applicant being targeted for harm having left Vietnam illegally March 2011 is too remote to amount to a real chance.
The Tribunal has considered the applicant’s claims both individually and cumulatively and is not satisfied the applicant faces a real chance of persecution in Vietnam because he is a Catholic who departed Vietnam illegally and/or because he applied for asylum in Australia. The Tribunal finds that the applicant’s fear of persecution because of his religion, imputed or actual political opinion or membership of a particular social group is not well-founded.
Vietnamese children born overseas and household registration
The Tribunal has had regard to the Australian birth certificates located on the Department’s file and finds that the children (the second and third-named applicants) were born in Australia and that the applicant is the children’s father. The Tribunal is satisfied that the children’s parents are Vietnamese nationals.
The applicant fears that his children need protection because they were born in Australia and do not hold Vietnamese identity documents. He fears they will be denied an education and employment in Vietnam. The Tribunal notes that the second named applicant is [age] years old and the third named applicant is [age] years old.
The Tribunal has had regard to information from the USDOS Human Rights Report which confirms that by law the government of Vietnam considers anyone born to at least one citizen parent to be a citizen. The Tribunal also notes that education is free and compulsory in Vietnam.[18]. According to the Constitution of the Socialist Republic of Vietnam (1992) all citizens have a right to education. Article 59 states that “Education is a right and an obligation of citizens. Elementary education is mandatory and free. Article 10 of the Education Law introduced in January 2006 states that learning is the right and obligation of every citizen. Every citizen, regardless of their ethnic origins, religions, beliefs, gender, family background, social status or economic conditions, has equal rights of access to learning opportunities.[19] The Tribunal finds that the applicant’s children will be entitled to have an education in Vietnam.
[18] USDOS Vietnam 2017 Human Rights Report, p32, see also Law on Vietnamese Nationality at World Data on Education 7^th edition 2010/11 Vietnam, compiled by UNESCO-IBE, >
The Tribunal has had regard to country information and is also satisfied that the applicant and his children will be able to obtain household registration on return to Vietnam. [20] Through household registration (ho khau), the applicants will be eligible for basic social services, including education, poverty assistance and health care, as well as access to subsidised medical care and national targeted programs for poverty reduction. The Tribunal does not accept that the applicant and his children would be denied or unable to obtain household registration.
[20] National Offender Management Service and Praxis Community Projects, 2017, Returning to Vietnam, CISEDB50AD157, pp.2-3
The Tribunal finds therefore that the applicant can apply to the Vietnamese authorities to obtain Vietnamese identity documents and register the second and third named applicants. The Tribunal finds that it is mere speculation for the applicant to claim his children will not be able to find employment in the future in Vietnam.
The Tribunal notes that Vietnamese nationals residing overseas are referred to as Viet Kieu. A 2010 working paper describes the Vietnamese government’s 2004 formal guiding principles ‘for all governing bodies to follow when creating new policy toward the Viet Kieu’. Two of these principles are non-discrimination against ‘any past history or current status of the overseas community as long as they share the goals of nation building and promoting the growth of Vietnam’; and respect for the rights of overseas Vietnamese, while ‘encouraging them to promote Vietnamese culture and tradition’.[21] In the circumstances the Tribunal does not accept the applicant and/or his children will face persecution because of the time they have spent outside Vietnam.
[21] Pham, A T 2010, The Returning Diaspora: Analyzing overseas Vietnamese (Viet Kieu) Contributions toward Vietnam’s Economic Growth, DEPOCEN, Working Paper Series No. 2011/20, 27 November, pp.17, 18

Looking into the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the second-named and third-named applicants would face persecution from the Vietnamese authorities because they were born in to a Western country and do not have Vietnamese identity documents.
Complementary protection
The Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, Vietnam, there is a real risk they will suffer significant harm.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[22] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J.
[22] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
For the reasons above, the Tribunal finds that the applicant does not face a real risk of significant harm from the authorities if he returns to Vietnam because of his religious beliefs, his involvement in religious marches or because he will be returning as a failed asylum seeker who departed Vietnam illegally. The Tribunal also notes that the law that deals with irregular departure in Vietnam, applies to the population generally and not to the applicant personally.
For the reasons given above, the Tribunal finds that the applicant and his children will be able to obtain household registration and the applicant children will be entitled to an education in Vietnam.
The Tribunal accepts that the United Nations High Commissioner for Refugees and other humanitarian organisations are permitted by the government of Vietnam to provide assistance to returning refugees;[23] and Vietnamese nationals are entitled to have their ho khau (household registration) reinstated, allowing them access to government services, when they return to Vietnam from overseas.[24] [25] The Tribunal acknowledges the applicants may not be returning as a voluntary returnee under a UNHCR program, however the Tribunal considers the treatment of such returnees is relevant information as to the way in which ordinary returnees, without a political profile, are treated by the authorities in Vietnam.
[23] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Vietnam, 24 May, Section 2(d)
[24] Immigration and Refugee Board of Canada 2009, VNM103088.E, Vietnam: Process for being reinstated onto a household registration, 26 February, UNHCR Refworld <
[25] Department of Foreign Affairs and Trade 2012, DFAT Report No. 1364 – Vietnam: RRT Information Request: VNM39900, 6 March
Relying on the independent country information referred to above, the Tribunal does not accept the applicant has a real risk of suffering significant harm because he left Vietnam illegally seven years ago and is a failed asylum seeker.
The Tribunal accepts the possibility he may be questioned at the airport upon return for reason of having been deported from Australia, but in the absence of any information to suggest such questioning routinely occurs or involves any level of mental or physical harm, the Tribunal does not accept that being questioned amounts to cruel and inhuman treatment or punishment, or degrading treatment or punishment, and does not amount to significant harm.
For the reasons given above the Tribunal does not accept on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will be arbitrarily deprived of their life, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment as defined. Accordingly the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.

Christopher Smolicz
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.

..
36 Protection 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.

…

[2018] AATA 3142

31 May 2018

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