1702984 (Refugee)
[2019] AATA 6863
•1 November 2019
1702984 (Refugee) [2019] AATA 6863 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1702984
COUNTRY OF REFERENCE: Vietnam
MEMBER:Jason Pennell
DATE:1 November 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 1 November 2019 at 4.50pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – imputed political opinion – land dispute between church and local officials – pro-South, anti-government profile – previous attempt to leave Vietnam – sent to re-education camp – credibility – delay in applying for protection – unlawful residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R(1)(a)
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMA v Darboy [1998] FCA 931
Saliba v MIMA (1998) 89 FCR 38
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 on 8 February 2017 to refuse to grant the visa applicants Protection (Class XA) Subclass 866 visas under s.65 of the Migration Act 1958 (the Act).
2.The applicants, Mr [A] and Mrs [B], both applied for a protection visa on 5 December 2014. The delegate refused to grant them a visa on the basis that they are not people in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and are not a members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by either applicant.
3.The applicants appeared before the Tribunal on 13 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [C]. At the hearing [Mrs B] was not able to present any evidence to the Tribunal The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
4.The applicants were represented in relation to the review by their registered migration agent.
5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
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).
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.’
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
[1] s.91R(1)(b)
[2] s.91R(1)(c) of the Act
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]
[3] s.91R(1)(a) of the Act
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]
[4] s.5(1) of the Act
[5] s.36(2B) of the Act
Section 499 Ministerial Direction
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
The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and country of reference
(a)The first applicant
[Mr A]’s evidence was that he was born on [date 1] in Bac Lieu, Vietnam. The Department file contains a copy of [Mr A]’s Socialist Republic of Vietnam passport[6] which confirms his date and place of birth. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.
[6] Department [File No] @ F.60
(b)The second applicant
[Mrs B]’s evidence was that she was born on [date 2] in Bac Lieu, Vietnam. The Department file contains a copy of [Mrs B]’s Socialist Republic of Vietnam passport[7] which confirms that she was born in 1957 in Bac Lieu, Vietnam. There is no evidence to suggest that she has a right to enter and reside, whether temporarily or permanently, in any other country.
[7] Op Cit @ F.59
Accordingly, the Tribunal finds that the applicants are citizens of Vietnam and that their protection claims will be assessed against Vietnam as the country of reference and 'receiving country' respectively.
Migration history
[Mr A] and [Mrs B] arrived in Australia [in] March 2009 and became unlawful non-citizens [in] October 2009. The applicants were located by officers of the Department [in] November 2014 during an s.251 warrant. The applicants lodged their applications for a Protection (Class XA) visa on 5 December 2014.
Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[8] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[9]
[8] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[9] Subramanium v MIMA (1998) VG310 of 1997.
In this case the applicants arrived [in] March 2009 and became unlawful non-citizens [in] October 2009. They remained unlawful until [November] 2014 when an s.251 warrant was executed against them. The applicants then lodged their applications for a Protection (Class XA) visa on 5 December 2014, a period of approximately five years and nine months after their arrival in Australia.
In the material before the Tribunal the applicants did not provide any reasonable explanation for the delay in making their application for protection. The Tribunal notes that the circumstances by which they claim to fear returning to Vietnam where already in existence at the time of their departure for Australia. That is [Mr A] was Secretary of the Vietnamese Evangelical Church in his local area and a land dispute had occurred concerning local officials confiscating the Church land and distributing it to their family members. However, when asked by the Tribunal the reason for them traveling to Australia, [Mr A]’s response was that it was to help their daughter and look after their new grandchild. In his statutory declaration dated 5 September 2019, [Mr A] claims that when he and [Mrs B] arrived in Australia they were preoccupied with taking care of their grandchild and daughter and as a result did not make any application for protection. He claims that he only found out about the possibility of seeking protection after they were confronted by immigration officials for overstaying their visas. By implication, it appears that the applicants would have been content to remain unlawful without making any application for protection.
However, where the applicants’ claim to have a well-founded fear of persecution as a result of threats and harm by Vietnamese local officials and in circumstances where they claim to have an anti-regime profile as a result of having previously tried to flee the [country] in 1979,[10] it is reasonable to expect the applicant’s to have claimed protection upon their arrival in Australia. Having tried to flee Vietnam as refugees previously, it is reasonable to expect that the applicants would have been aware of their ability to seek asylum upon their arrival in Australia. Therefore, based on the applicants’ delay in making their application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicants’ fear of persecution[11] as claimed. Given the extensive delay of approximately five years and nine months from their arrival in Australia until the time of making their application for a protection visa, the Tribunal has placed little weight on the applicant’s evidence in relation to each of their respective claims.
[10] Statutory Declaration of [Mr A] 8 December 2016 @ [6]
[11] Subramanium v MIMA (1998) VG310 of 1997.
[Mr A]’s evidence.
[Mr A]’s evidence was that he has resided in Bac Lieu, Vietnam all his life. He claims that he is of Kinh ethnicity; a Christian. He stated that he attended his local school in Bac Lieu and later worked as [an occupation] prior to his arrival in Australia. The applicant stated that he had three [siblings]. He stated that he has one [sibling] who has lived in Australia for approximately four or five years. He claimed that another [sibling] disappeared after the war trying to flee Vietnam, while his remaining [sibling] passed away about three years ago.
[Mr A] said that he and [Mrs B] were married in or around 1976. They have a total of [number] children. They have a daughter and son living in Australia with the [remaining] children continuing to live in Vietnam.
[Mr A]’s evidence was that his family belonged to the Evangelical Church and that they supported the South during the war. He claims his [siblings] were in the South Vietnamese army and [for a specified reason] he was excused from joining the army. He stated that [Mrs B]’s [siblings] were also in the South Vietnamese army. One of her [siblings] left Vietnam illegally after the war and was granted political asylum in [Country].
The applicant claims he fears harm if returned to Vietnam on the basis of his protestant Christian religion, his actual and/or imputed political opinion and because he is a failed asylum seeker.
[Mr A] claims that he and [Mrs B] tried to leave Vietnam illegally at the end of the war [in 1979] but were caught. As a result, he was sent to re-education camp for 13 months. He was released in 1980 but states that he has been trying to leave Vietnam since his release. He believes that he and [Mrs B]’s lives were at risk in Vietnam because his family was classified on a blacklist.
[Mr A]’s evidence was that at the re-education camp, he was interrogated about his attempted ‘escape’ and forced to do ‘hard labour’ and regularly received beatings. He claimed that his family was forced to bring supplies to him because the authorities only provided steamed rice and salt to eat.
[Mr A] claimed that at night he was required to attend political lessons about the government and their policies. [Mr A] claims that the re-education camps were set up in a way to get inmates to denounce each other. He stated that the detainees were encouraged to tell the authorities about their fellow camp mates who acted in an anti- government fashion or who had a plan of escape. He claimed that if they did not inform the authorities and they later found out, the camp mates would be placed in solitary confinement and not receive any food.
[Mr A] claimed in his statutory declaration dated 8 December 2016 that after his release from the re-education camp he was required to report to the police station twice a week.[12] However, his evidence to the Tribunal was that he was required to report to the police station once per week. He claimed in his statutory declaration that he was required to report to the police continually until 2009 and that he was last detained in 2009 prior to his departure from Vietnam, whereupon he was questioned about the land dispute.[13] However, his evidence to the Tribunal was that he was only required to report once per week until 1986 and that from 1986 until 2000 he was not required to report to the police. However, he claimed that as a result of the land dispute involving his Church he was required to resume his reporting to the police from 2000 until 2003. His evidence was that from 2003 until the time he departed to Australia in 2009, he was not required to report to the police.
[12] Statutory Declaration dated 8 December 2016 @ [12]-[14]; Department [File No] @ f 66.
[13] Op Cit @[15]; ibid
[Mr A] claimed that when he reported to police they would detain him for a period of time before letting him go. He claims when he was detained, he was kept in an office until closing time and they kept him in an interview room overnight. He claims sometimes he was kept for one night, sometimes for two nights, during which they would not feed him but would have to pay officers to go and buy food for him. He claims while he was detained they threatened him with their rifles. He claims they threatened to throw a live grenade into the room he was held in and threatened him because they wanted him to withdraw the complaint over the land dispute.[14]
[14] Op Cit @ [16]; ibid
[Mr A]’s evidence was that in 2009 his daughter had sponsored him and [Mrs B] to come to Australia on a [temporary] visa. His evidence was that she was living in Australia with her husband and is now an Australian citizen. He claims that the day before he traveled to Australia he told the police officers that he was going to see his daughter in Australia and showed them his visa.[15]
[15] Op Cit @ [17]; ibid
[Mr A] claimed that in order to leave Vietnam he had to pay a bribe to officials to get a passport. He claims that without paying the bribe he would have not been issued a passport at all. However, the applicant was not able to inform the Tribunal as to the amount he paid the officials or to whom he paid it. In addition, he was not able to provide any evidence to the Tribunal of having paid any bribe as claimed. Accordingly, the Tribunal does not accept that [Mr A] paid any official a bribe for the purposes of obtaining his passport as claimed.
[Mr A] claimed that he has not told anyone in Vietnam that he has applied for a Protection visa. He stated in his statutory declaration that he told his children that he needed to stay in Australia to help his daughter who has a mental illness. He claimed that he was worried that if he told anybody that he had applied for protection it would be bad for his children in Vietnam.[16] However, the applicant did not elaborate upon how it would be bad for his children. The applicant did not provide the Tribunal with any supporting evidence as to his claim that his daughter had a mental illness that required his and [Mrs B]’s attendance and care. Further, it was not made clear by [Mr A] as to how any alleged mental condition of his daughter affected the applicants’ claim for protection. [Mr A]’s evidence was that he and [Mrs B] arrived in Australia to care for their daughter and her children. Based on [Mr A]’s evidence there is no connection between their daughter’s mental condition and their claims for protection. As such, the Tribunal finds that there is no real risk that the applicants will suffer serious harm in the event that they return to Vietnam by reason of their daughter suffering from a mental illness.
[16] Op Cit @ [20]; ibid
The applicant in his statutory declaration stated due to the police reporting it was very difficult for him to get a job, as he was sometimes detained as well. He claims if people found out he had been to re-education camp they would not want to hire him. He claims because he could not get a job he could not afford the passage to Australia. However, his evidence to the Tribunal was that he had worked various manual jobs and prior to arriving in Australia had worked as [an occupation].
[Mr A]’s evidence was that his wife [Mrs B] suffers from a serious [medical] condition which made it difficult for them to leave Vietnam as she was sick for long periods and they had to pay for medical bills. However, the applicants did not provide any documentation that sufficiently supported their claim that [Mrs B] has a [medical] condition. It was open to the applicants to have claimed that [Mrs B] may have suffered serious harm in the event that she is returned to Vietnam as a result of her heart condition. However, the Tribunal notes that on [Mr A]’s evidence she was receiving treatment prior to them leaving Vietnam. In addition, the country information reports that the government provides health care to all citizens in both rural and urban areas.[17] There is no evidence provided by the applicant or contained in the country information which indicates that [Mrs B] would be denied health care for her [medical] condition upon her return to Vietnam. As such, the Tribunal finds that there is no real chance that [Mrs B] would suffer serious harm in the event that she returns to Vietnam as a result of her [medical] condition as claimed.
[17] Department of Foreign Affairs and Trade Country Information Report – Vietnam dated 21 June 2017 @ p.6
[Mr A] claims that he was Secretary of the Vietnamese Evangelical Church in his local area. After the Vietnam War, the Northern Vietnamese government closed the Church. As a result local officials took the Church land and distributed it amongst their family members. [Mr A] claims that the Church members fought the confiscation of the land but the authorities did not want them to fight the land confiscation and did not want them to continue to worship or practice their faith. He claims they imprisoned the pastor of the church for approximately three years. He claims after the pastor was released he went to the [Country].
[Mr A] claims the dispute is continuing and has only gotten worse. The church has filed a complaint but claims that the people who have taken control of the land are important people within the local authorities. He stated that the family members of the local officers who took the land have built a house on it and have made violent threats to harm or kill members of the Church.
[Mr A] claims that as Secretary of the church he was involved with "making this complaint" and his signature is on the complaint paperwork. He claims he received personal threats from the new land owners and was confronted by people with sticks and weapons who told him to withdraw the complaint. He claims they said they would not stop until the complaint was withdrawn.
[Mr A] claims he does not support the Vietnamese government. He stated that he is considered anti-government because of his religion as well as his previous attempt to leave [Vietnam] when he was stopped and accused of treason. His evidence was that no matter where he goes in Vietnam, if he returns he will be known as a failed asylum seeker and that he was in re-education camp because his records on the national register show that he was held at re-education camp for attempting to leave the country illegally and for treason.
[Mr A] fears that if he returns to Vietnam he will be required to continue to report to the police officers. He claims he believes they would be very angry with him because he only told them he would be leaving Vietnam one day before his departure. As such he fears that he will be treated differently to someone who had not been to re-education camp. He claims he believes that they would not allow him to leave and that they may shoot him or blow him up with a grenade.
[Mr A] also fears that the land dispute has escalated to the point where he was physically threatened. He claims he has no doubt that he will be killed by the people who oppose his complaint. He claims he will be killed if he returns to Vietnam.
He claims he continued to face persecution because of his religion and political opinion. Due to the fact that he was in a re-education camp he claims that he will be continuously monitored by the authorities upon his return to Vietnam.
[Mrs B]’s evidence.
[Mrs B]’s appeared before the Tribunal but was not able to give any evidence. It was claimed that as a result of a [medical] condition she was so overcome that she was incapable of giving any evidence to the Tribunal. In her statutory declaration dated 30 September 2019[18] [Mrs B] claims that she had seen doctors for a [medical] condition for which she is taking medication. However, no medical evidence was provided by the applicants that supported [Mrs B]’s claim that she suffered a [medical] condition. At the hearing her representative referred to a Heath Summary Sheet (HSS) which detailed [Mrs B]’s current medication, being Indernal and Nexium. While Inderal can be used for certain [medical] conditions, the HSS stated that it had been prescribed to [Mrs B] for migraine. In addition Nexuim is a medication used for gastroesophageal reflux.[19] As such, the HSS did not disclose any information which indicated that [Mrs B] was suffering from a [medical] condition as claimed or any other condition that would have prevented her from giving evidence to the Tribunal. No other documentation or independent evidence was provided in support of [Mrs B]’s claim that she had consulted doctors or that she had [medical] condition. Accordingly, the Tribunal does not accept that [Mrs B] has a [medical] condition as claimed to the extent that it would have prevented her from giving evidence in support of the applicants’ claims to the Tribunal.
[18] Statutory Declaration dated 30 September 2019 @ [12]; AAT File No 1702984 f.47
[19] Drugs.com. Know more. Be sure. >
Nevertheless, at the hearing [Mrs B] did appear stressed and her condition deteriorated rapidly before any material claims could be discussed. The Tribunal notes that despite exhibiting a similar condition before the delegate[20], [Mrs B] has not provided any medical evidence to explain the deterioration of her condition before the delegate and the Tribunal.
[20] Delegates decision dated 8 February 2017; AAT file No 1702984 @ f.83
The Tribunal enquired about the [Mrs B]’s mental health but the applicants were not able to provide any evidence in relation to her mental health condition. As a result the Tribunal allowed the applicants to provide with any additional material they wished to rely upon, in particular any evidence the [Mrs B] wanted to rely upon including any medical report in relation mental health, by 1 October 2019.
As a result the applicants’ representative provided a further submission dated 1 October 2019. In addition, by an email dated 7 October 2019,[21] the applicant’s representative informed the Tribunal that [Mrs B] had consulted a mental health worker for a mental health assessment on 1 October 2019 and advised that the Tribunal will be informed of any further information in relation to her mental health. At the time of this decision the Tribunal had not received any further information from the applicant’ and in particular no further communication in relation to [Mrs B]’s mental health. Accordingly, given that the Tribunal has found that the applicant does not have heart condition that would have prevented her from giving evidence to the Tribunal as claimed and in light of the submissions provided to the Tribunal, it finds that [Mrs B] has been able to present evidence and present arguments in support of her claims.
[21] AAT file 1702984 @ f.56
By her application and her statutory declarations dated 5 September 2019[22] and 30 September 2019[23] [Mrs B] stated that:
[22] Statutory Declarations by [Mrs B] dated 5 September 2019; AAT file 1702984 @ f29
[23] Statutory Declarations by [Mrs B] dated 30 September 2019; AAT file 1702984 @ f48
(a)She is a 62 year old woman from Bac Lieu, Vietnam.
(b)She was married to [Mr A] on [date] 1976.
(c)She speaks Vietnamese.
(d)She is of Kinh ethnicity, a Christian and engaged in domestic duties.
(e)She is one of [number] children in her family. She claims that one of her brothers was a soldier for the South Vietnamese Army. He was detained in a re-education camp and still lives in Vietnam. A cousin, but known to her as a brother, was killed in combat.
(f)Her evidence was that she has a [sibling] living in the United States of America who fled after the new regime took over.
(g)Her uncle could not deal with the stress of the new regime and killed himself after his assets were seized.
(h)Her other uncle was [an officer] in the Southern Army. He was captured and imprisoned in re-education camp for [number] years.
(i)When her husband was in the re-education camp she would visit him twice a month. She claimed that he was in a special prison because he was thought to be an organiser of the attempted [escape].
(j)She claims that after the war she was not allowed to work. As a result she resorted to selling [produce] on the black market.
(k)She claims that she was not able to obtain employment due to the fact that she was known to be a supporter of the south.
(l)She claims that of she is to return to Vietnam she will not be able to find employment and her children will not be able to support her and [Mr A] as they have their own families.
(m)She claims to have a [medical] condition for which she takes medication. She claims that her condition is fragile and that she gets shortness of breath.
(n)She claims that the new regime tried to close down the church but they did not have written authority. As a result the church operated normally but the authorities would have someone attend at gatherings to ensure that they would not say anything about the government.
(o)She claims that [Mr A] and her were monitored by the government as a result of them trying to leave Vietnam in 1979 and as a result of their involvement in the church land dispute.
(p)She claims that if she is to return to Vietnam her health will worsen “because of the mental pressures she faces”.[24]
[24] Statutory Declarations by [Mrs B] dated 5 September 2019 @ [7]; AAT file 1702984 @ f29
Applicants’ Documents
For the purposes of its decision and reasons the Tribunal has considered the following documents provided by the applicants:
(a) [Mr A]’s application for protection dated 5 December 2014.[25]
[25] Department [File No] @ f.33
(b) [Mrs B]’s application for protection dated 5 December 2014.[26]
[26] Department [File No] @ f.49
(c) Letter by [Legal centre] dated December 2014.[27]
[27] Department [File No] @ f.56
(d) Copies of applicants’ passports.[28]
[28] Department [File No] @ f 60 & f.61
(e) Statutory Declaration by [Mr A] dated 8 December 2016[29]
[29] Department [File No] @ f 62 & f.68
(f) Statutory Declaration by [Mr A] dated 5 September 2019.[30]
[30] AAT File No 1702984 @ f.33
(g) Statutory Declaration by [C] dated 8 September 2019[31]
[31] AAT File No 1702984 @ f.27
(h) Statutory Declaration by [Mrs B] dated 5 September 2019.[32]
[32] AAT File No 1702984 @ f.29
(i) Statutory Declaration by [Mrs B] dated 30 September 2019.[33]
[33] AAT File No 1702984 @ f.48
(j) Various photos.[34]
[34] Department [File No] @ f 69; AAT File No 1702984 @ f.24-26
(k) Agreement and Confirmation dated 18 October 2005[35]
[35] AAT File No 1702984 @ f.22 & f.21
(l) Health Summary Report dated 4 September 2019.[36]
[36] AAT File No 1702984 @ f.24
Applicants’ Claims
The applicants’ claims for protection are contained in their protection visa applications, dated 5 December 2014. [37]
[37] Department [File No] @ f.49 and f.33
[Mr A]’s written claims[38] are as follows:
[38] Department [File No] @ f. 33 questions 44 – 49.
Why did you leave that country?
‘I tried to leave in 1979. I continued to face persecution because of my religion and my political opinion.’Have you experienced harm in that country?
‘I was in a re-education camp. I was continuously monitored by the authorities. I faced continuing death threats. I have been prevented from going to church.’What do you fear may happen if you back to that country?
‘I will be killed in jail.’Who do you think may harm/mistreat you if you go back?
‘The authorities.’Why do you think this will happen to you if you go back?
‘It has happened to me before and I know it is happening still.’Do you think the authorities of that country can and will protect you if you go back?
‘No. because they are the ones that want to harm me.’[Mrs B]’s written claims[39] are as follows:
[39] Department [File No] @ f. 49 questions 44 – 49.
Why did you leave that country?
‘My husband tried to escape in 1979 with me. We have been continually persecuted since then because of out religion, our political opinion and because my brother lives in America as an asylum seeker.’Have you experienced harm in that country?
‘I have been threatened monitored and prevented from practicing my religion.’What do you fear may happen if you back to that country?
‘I will be arrested, detained and killed.’Who do you think may harm/mistreat you if you go back?
‘Because this is what the government does to people like me. The government and authorities.’Why do you think this will happen to you if you go back?
‘This is what the government does to people like me.’Do you think the authorities of that country can and will protect you if you go back?
‘They are the people who want to harm me.’The applicants’ submission made by their representative[40] to the Tribunal stated that the applicants are at risk of serious harm by reason that:
[40] Applicants’ submissions dated 9 September 2019 @ p.3; AAT File 1702984 @ f.41.
(a)Mr [A]’s political profile being deemed a traitor to the state for supporting the South and attempting to seek asylum.
(b)Mr [A]’s subsequent involuntary imprisonment in a re-education camp.
(c)Decades of on-and-off reporting and monitoring by the Vietnamese authorities.
(d)The government’s confiscation of land belonging to the [Church] and subsequent complaint to the local authority which [Mr A] claims he was involved in.
(e)Occupation and development of church land by persons with connections to the regime and the ensuring land dispute.
(f)Threats to kill, assaults, intimidation and harassment by the above-mentioned occupiers of the land who are former members of the army.
(g)The fact Mr [A] played a key role as Secretary of the Church in the land dispute and was known to other parties, including the local authorities.
(h)The control, monitoring and harassment of church activity by Vietnamese authorities.
(i)The government’s oppression of religious freedom.
(j)A denial of or inability to access proper healthcare for [Mrs B]’s health conditions.
(k)The applicants’ inability to find paid employment or access the state pension system on account of their political profile, age prolonged absence from Vietnam and the fact that they would not be eligible for the state pension scheme.
COUNTRY INFORMATION
In assessing this decision the Tribunal has considered the available country information, including the Department of Foreign Affairs and Trade’s Country Information Report – Vietnam dated 21 June 2017 (‘the DFAT Report’) that states:
Recent History
2.1Vietnam officially gained independence from French rule in 1956 when The French High Command for Indochina was dissolved. The French forces had begun the process of withdrawal from the country two years earlier after losing a significant battle against The League for the Independence of Vietnam (Việt Minh), the organisation that led the struggle for Vietnamese independence. The 1954 Geneva Accords divided the country into two separate republics; the Republic of Vietnam (South) and the Democratic Republic of Vietnam (North). Decades of conflict between the republics followed, gradually intensifying and resulting in what is commonly referred to as the Vietnam War (also referred to as the American War or the Second Indochina War). The war ended in April 1975 when Communist forces captured the presidential palace in Saigon, now officially named Ho Chi Minh City. The Third Indochina War began in 1978 when Vietnam forces invaded Cambodia to oppose the Khmer Rouge leadership. China launched attacks on several Northern provinces of Vietnam the following year, which resulted in mass departures of ethnic Chinese ‘boat people’ from Vietnam in the 1980s.
2.2 In 1986, following a period of economic stagnation, Vietnam undertook a series of reforms (known as Đổi Mới) with the aim of increasing economic growth, which opened up the country to foreign investment. The US lifted its 30-year trade embargo in 1994 and the following year Vietnam became a full member of the Association of Southeast Asian Nations (ASEAN).
2.3 An increasingly vocal and organised civil society began to develop from 2007 onwards, primarily using social media and internet forums to foster and discuss political issues. In response to this, the Government increased its suppression of media in 2008, resulting in arrests and prosecutions of several journalists, bloggers and pro-democracy activists. Decree 72 was introduced in 2013 to manage the provision and use of Internet services and online information, making it an offence to discuss and share any political
Protestants[41]
[41] DFAT Report @ p.13
3.14 Protestants in Vietnam constitute an estimated 1-2 percent of the total population (approximately 900,000 to 1.8 million), and predominantly reside in the northern and central highlands of the country. Protestantism is one of the 14 distinct religions that hold full government recognition and registration; however, similar to Catholicism, there are unregistered groups and churches in more remote areas that encounter barriers to freely practice and register places of worship. According to estimates by adherents and published by the US Department of State, two-thirds of Protestants are members of ethnic minorities; most notably the Montagnards in the central highlands and the H’mong, Thai and others in the north-west highlands.
3.15 The US Department of State reported that some registered and unregistered Protestant groups experienced difficulties with local authorities in 2016. Authorities regularly pressured new and smaller congregations to affiliate with larger established congregations. Many adherents refused due to the language barriers and the challenges associated with travel to larger congregations, due to the poor road conditions of the mountainous areas. In-country contacts have provided similar reports. DFAT assesses these reports to be credible.
3.16 DFAT assesses that Protestants are able to practise their faith more freely than in 2014 and 2015, continue to face a moderate level of harassment in remote areas due to the authorities’ reluctance to register house churches. DFAT notes that authorities’ actions appear to be motivated by the perceived political views or activities of these groups, rather than religious beliefs. The Government continues to scrutinise some groups more than others, due to a perceived involvement with separatist political organisations. Given that a high percentage of Protestants belong to ethnic minorities, especially the Montagnards, the Government remains suspicious of ethnic minorities establishing religious groups within the sensitive mountainous regions.
Political Opinion (Actual or Implied)
3.20 Article 4 of Vietnam’s Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, with very few formal avenues for political participation. Only two self-nominated candidates in the National Assembly Elections of 22 May 2016 were elected out of a total of 496 elected candidates.
3.21 Vietnam’s Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration; however, these are restricted by a number of ‘national security’ provisions within Vietnamese law. In practice, the Government does not tolerate political expression against the CPV, the Government or its policies. On 9 June 2016 the European Parliament adopted resolution 2016/2755(RSP) on Vietnam that called upon the Government to put an immediate stop to all harassment, intimidation, and persecution of human rights, social and environmental activists. It insisted that ‘the government respect these activists’ right to peaceful protest and release anyone still wrongfully held’.
Political Activists[42]
[42] DFAT Report @ p14
3.22 The Government has used specific laws to curb dissent, such as Article 79 of the Penal Code (‘overthrowing the State’), Article 88 (‘conducting propaganda against the State’) and Article 258 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’), all of which in practice take precedence over constitutionally enshrined rights. These offences carry penalties ranging from prison sentences of between six months and 20 years; to life imprisonment or capital punishment. DFAT is not aware of any recent cases of the death penalty being applied for political activities.
3.23DFAT is aware of at least 19 reported convictions of political/human rights activists in 2016. The convictions resulted in a total of more than 70 years in prison for the abovementioned offences, as well as the use of Article 245 of the Penal Code (‘causing public disorder’) and Article 87 (‘undermining national unity’)
3.24Increased suppression of political activism generally coincides with high-level events, such as the lead up to the National Party Congress, National Assembly Elections, and with other significant issues affecting the country, such as the South China Sea disputed territories and the mass fish death crisis in April 2016.
Supporters and protesters[43]
[43] DFAT Report @ p16
3.28 Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.
3.29 DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.
Treatment of Returnees [44]
[44] Op cit @ p.24
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……..’
Exit and Entry Procedures[45]
[45] DFAT Report @ p.24
5.18 The Vietnamese Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’ (Article 23). In practice, the Government imposes limits on the movement of some individuals, particularly foreign travel by high profile political activists. Authorities often confiscate passports or deny issuance of passports for people the Government deems a threat to national interests. The Department of Immigration, part of the Ministry of Public security, is responsible for the issuance of passports and visas, as well as monitoring citizens migration to and from Vietnam
5.19 The General Department of Customs, under the Ministry of Finance (MoF), is responsible for controlling the entry and exit of citizens and foreigners at airports. Airport control generally operates smoothly in all major cities and towns, however, corruption reportedly remains a problem. In 2015, a corruption hotline was established in Ho Chi Minh City in an attempt to reduce bribery at customs control points.
5.20 Internal and external relocation continues today due to decreasing sources of livelihood, as a result of environmental factors such as land degradation and non-natural disasters such as the mass fish deaths in April 2016 caused by a toxic waste spill at Taiwanese-owned steel company, Formosa Ha Tinh Steel Corp, in Ha Tinh province.
Conditions for Returnees [46]
5.21DFAT 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.
5.22DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.
Prevalence of Fraud[47]
5.30 Document fraud is common in Vietnam but is not necessarily linked to criminality or attempts to avoid entry and exit requirements. Applicants may resort to fraudulent documents—or to obtain them unofficially—to avoid corruption and inefficiency in the responsible government agencies. Documents can normally be verified through referral to the source, but this may result in penalties for the person concerned.
5.31 Passport fraud is one of the most difficult types of document fraud to detect in Vietnam, since it is normally undertaken by using false documents to obtain a genuine passport. If a suspicious passport is referred to the Investigations Unit of the Immigration Department, it is possible to trace the document trail behind the genuine passport and detect fraud where present.
5.32 DFAT is aware of a number of scams involving Australian visa fraud, but the products of these scams are of relatively poor quality.
[46] DFAT Report @ p.25
[47] DFAT Report @ p.26
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. Nevertheless the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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[48]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[49]
[48] s.5AAA Migration Act 1958.
[49] 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.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[50] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[50] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[51] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[51] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
The Accepted facts
Having considered the applicant’s claims and the relevant country information the Tribunal accepts and finds that [Mr A]:
(a)resided in Bac Lieu, Vietnam all his life.
(b)is of Kinh ethnicity; a Christian.
(c)attended his local school in Bac Lieu and later worked as a [occupation] prior to his arrival in Australia.
(d)had [a number of siblings], one who has lived in Australia for approximately four or five years, another who disappeared after the war trying to flee Vietnam, and a remaining [sibling] who passed away about three years ago.
(e)married [Mrs B] on [date] 1976 and with her has a total of [number] children. They have a daughter and son living in Australia with the [remaining] children continuing to live in Vietnam.
(f)tried to leave Vietnam with [Mrs B] illegally at the end of the war [in 1979] but was caught.
(g)was sent to a re-education camp for 13 months.
Having considered the applicant’s claims and the relevant country information the Tribunal accepts and finds that [Mrs B]:
(a)is a 62 year old woman from Bac Lieu, Vietnam.
(b)was married to the applicant on [date] 1976.
(c)speaks Vietnamese.
(d)is of Kinh ethnicity, a Christian and engaged in domestic duties.
(e)has a brother who was a soldier for the South Vietnamese Army and still lives in Vietnam and that her cousin (but known to her as a brother) was killed in combat.
(f)has a brother living in [Country].
(g)had an uncle who has passed away and an uncle who was [an officer] in the Southern Army.
(h)worked selling [produce].
Applicants’ Refugee Claims
(a)Relevant Grounds
The applicants submit that their claims fall within the scope of s.91R(1)(a) of the Act by reason of their imputed political opinion, as a result of having tried to escape [Vietnam] in 1979, together with their religion and membership of a particular social group as members of the local church involved in a land dispute with the family of an military/ex-military person.
Generally the term ‘political opinion’ needs to be understood broadly. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides that:[52]
[52] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ.
‘Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions. This presupposes that the applicant holds opinions not tolerated by the authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant. The political opinions of a teacher or writer may be more manifest than those of a person in a less exposed position. The relative importance or tenacity of the applicant's opinions - in so far as this can be established from all the circumstances of the case - will also be relevant….’
For the purposes of the Convention and under the Act a political opinion need not be an opinion that is actually held by the refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor.[53] In Saliba v MIMA the Court held:
[53] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.
‘for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[54]
[54] (1998) 89 FCR 38 at 49.
In this case, [Mr A] claims that as a result of having tried to [escape] in 1979, he was forced into a re-education camp and that he has been continually monitored. As such it is claimed that the applicants have been imputed with a political opinion that is contrary to the government. Based on the evidence of [Mr A], the Tribunal is prepared to accept that the applicants fall within the scope of s.91R(1)(a) of the Act by reason of their political opinion.
The scope of ‘religion’ within the context of the Convention has been considered by the Federal Court in several cases including MIMA v Darboy[55] and Wang v MIMA.[56] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
[55] [1998] FCA 931 (Moore J, 6 August 1998).
[56] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].
‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’
The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and will often depend on the motivation of the persecutor or in circumstances where fear is by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[57]
[57] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[58] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[59]
[58] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 ( per Hill, Whitlam & Carr JJ, 10 February 2000)
[59] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
As members of their Church, in particular [Mr A] being assistant secretary, involved in a land dispute with family members of a military/ex-military person, the Tribunal accepts that they fall within the scope of s.91R(1)(a) of the Act by reason of their religion as a result of a land dispute between the Church and families of local officials.
Finally, the applicants also claim that that they fall within the scope of s.91R(1)(a) of the Act by reason of their membership of a particular social group. That is, as people who are Christian and have an ongoing land dispute as with family members of a military/ex-military person.
It is necessary that as a result of the applicant’s membership of a social group that they share a certain characteristics or elements which unite him with a particular group which sets it apart from society at large. That is to say, not only must the applicants with their group exhibit some common element, it must unite them, making them a cognisable group within their society.[60]
[60] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
While it may be said that as Christian and as members of the [Church] who are involved in a land dispute with the family of a military/ex-military person that they share a common interest of restoring or recovering the Church’s land, the Tribunal has considerable doubts that as members of the [Church] involved in the land dispute that they share common characteristics or elements that could be described as being so distinct as to set them apart from society at large and as to unite them and make them a consignable group in society. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept the applicants, as Christians involved in an ongoing land dispute with family members of a military/ex-military person, are members of a particular social group within the scope of s.91R(1)(a) of the Act.
(b)Applicant’s well-founded fear.
In Chan v MIEA[61] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[62]
[61] (1989) 169 CLR 379 at 396.
[62] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to Vietnam.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [63]stated:
[63] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
In MIEA v Guo, the Court stated that: [64]
[64] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
The applicants claim that in the event that they are returned to Vietnam there is a real chance they will suffer serious harm by local officials as members of their Church due to a land dispute between families of local official and the church. In addition they claim that having been detained in 1979 attempting to escape [Vietnam] and as failed asylum seekers, they will they will suffer serious harm by local officials. While the Tribunal accepts that the applicants may possess a subjective fear, for the reason stated in these reason the Tribunal finds an applicants do not have a genuine fear founded on the basis that there is a real chance they will suffer serious harm upon their return to Vietnam.
Applicants as Refugees
(a)The Applicants’ Political opinion.
The applicants claim that they have a political profile in Vietnam as being anti-regime. They claim that based on their support for the South, their religion and their actions involving their Church’s land dispute they claim to have a political profile that is considered anti-regime.
[Mr A] claims that his family was blacklisted during the war. His family belonged to the Evangelical Church, supported the South during the war and his [siblings] were in the Vietnamese army. The Tribunal has accepted that his [siblings] were in the Southern Army. However, [Mr A]’s evidence to the Tribunal was that he did not fight in the Army. His evidence was that, [for a specified reason], he was excused from service in the Army. As a result he remained at home during for the duration of the war.
[Mr A]’s evidence was that he was married to [Mrs B] in 1979. He worked principally in manual/labouring jobs and that he and [Mrs B] had [a number of] children. His evidence was that his children who have remained in Vietnam continue to work principally in manual or labouring jobs. No evidence was given that the applicant’s children held any political profile by which it may be suggested that the applicant could be imputed with such a profile. The country information states that individuals who are known to the authorities as active organisers or leaders of political opposition are at a high risk of being subjected to intrusive surveillance detention, arrest and prosecution.[65] While the applicant claimed that he was not a supporter of the government there was no evidence of him being openly critical of the government. In addition, save from his position as Assistant Secretary of his local church, there was no evidence to suggest that [Mr A] or [Mrs B] acted as a leader of political opposition against the government.
[65] DFAT Report @ p.15
[Mr A] claims that in 1979 he and [Mrs B] attempted to escape Vietnam after the war but [were detained] by the authorities. As a result [Mr A] was placed in a re-education camp for a period of approximately 12 months. The Tribunal accepts [Mr A]’s evidence that the conditions in the re-education camps were very harsh, with prisoners being treated to little food, poor sanitation, and no medical care.[66] [Mr A]’s evidence was that after his release he was required to report to the local police once a week, from 1980 to 1986. In the absence of any evidence to the contrary, the Tribunal accepts that the applicants tried to ‘escape’ [in 1979] and that [Mr A] was sent to a re-education camp as claimed.
[66] The Vietnam War, ‘Vietnamese re-education camps’ 17 April 2014, >
However, [Mr A]’s evidence in relation to the method by which he had to report to the police was vague and confusing. Initially, he said that he had a book which he had to present to the police to record that he had reported as required. He then stated that the police would note his attendance each time he reported to them. He stated that from time to time upon reporting to the police he would be detained but then released without any charge. While the Tribunal has some concerns about [Mr A]’s evidence it accepts that he reported to police from 1980 to 1986 as claimed.
While the Tribunal accepts that the conditions in the re-education camp would have been harsh and oppressive and that the requirement to report would have limited to his ability to move freely within Vietnam and abroad, they are conditions that would have been imposed on all citizens of Vietnam attempting to illegally flee the country at that time. The Tribunal notes [Mr A]’s evidence that, from time to time he was detained when reporting to the police, his evidence was that he was not harmed and that he was released after a relative short period of time.
In addition, the Tribunal notes that at the time he left Vietnam for Australia, he was not required to report to the authorities. [Mr A] claims that he paid additional money (bribes) to officials for the purposes of obtaining his passport. His evidence in relation to the payment of money for the purposes of obtaining his passport was extremely vague and evasive. There is no suggestion that his passport was false. [Mr A] did not provide any supporting evidence in relation to the additional payments as claimed including the amount paid and to whom it was paid. Accordingly, the Tribunal does not accept that [Mr A] paid any extra money for his passport as claimed. Therefore, having found that he did not pay any additional money to officials, the Tribunal does not accept that [Mr A] avoided being detained upon his departure for Vietnam as a result of having paid money to officials. The Tribunal notes that his passport contained his correct personal details and as such he departed the country under on his own passport and without being detained by the authorities upon his departure.
As a result the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of him being placed in a re-education camp in 1979 and his subsequent reporting to authorities from 1980 to1986.
[Mr A]’s evidence was that he was not required to report to the authorities from 1986 to 2000. However, he claims that as a member of the [Protestant] Church (specifically as the Assistant Secretary of the Association) specifically as a result of land dispute arising from the confiscation of Church land and a subsequent dispute between the Church and the family members of local officials, [Mr A] claimed that he was required to report to authorities from 2000 to 2003. He claims that he was targeted by the authorities as a person who had attempted flee Vietnam. As a result he claims that he was forced to report to the authorities as a result of the Church land dispute. However, on [Mr A]’s evidence the land (17,790m²) was confiscated in 1992. It was not made clear to the Tribunal if the Church had lodged a formal complaint at the time the land was confiscated. Nevertheless, [Mr A]’s evidence is that in 1996 the Church lodged a permit to use part of the land (7,490m²). The provincial government issued the church the right to use the land, but the local authorities ignored the permit and went ahead to develop the land.
[Mr A] claims that an ex-army officer took the land and built a house on it. He states that the ex-army officer, his wife, his two sons and three daughters moved onto the land when the Southern government fell.[67] The Tribunal notes that the Southern Government fell in Vietnam in 1975. In any event, there was no evidence of the Church having taken any action to secure its ownership or possession of the land until the request for a permit in 1992. On [Mr A]’s evidence it therefore appears that the ex-army officer and his family were in possession of the land well before the confiscation order was made and without any dispute from the Church. In any event, the Tribunal accepts that a dispute arose in relation to the possession and control of the Church land as claimed in or about 1996.
[67] Statutory Declaration [Mr A] dated 5 September 2019 @ [7]-[9]; AAT file 1702984 @ f.32
[Mr A] claimed that the members of the Church had been threatened many times by the ex-army officer; including one time when the house was being built the ex-military officer came to the Church hall and threatened the members with a grenade.[68] The ex-army officer has now passed away. However, [Mr A] claims that his wife and children continue to live at the house built on the land. He claims that he has been targeted as a result of him being the Secretary of the Church. However, [Mr A]’s evidence was that he had not received any threats specifically. Rather the threats received by the ex-military officer and his family have been made generally to the members of the Church rather than to him personally.
[68] Statutory Declaration [Mr A] dated 5 September 2019 @ [13]; AAT file 1702984 @ f.32
In 1996 the Church lodged a complaint and has continued to purse the issue.[69] His evidence was that after the death of the Ex-army officer the Church reached an agreement with the family to live for a further 12 months after which they would vacate. However, they have refused to vacate the property. A copy of an agreement between the [Protestant] Association and Mrs [D] and Mr [E] dated 18 October 2005[70] (‘the settlement agreement’) was provided to the Tribunal. The agreement lists [Mr A] as the Assistant Secretary of the Association.
[69] Statutory Declaration [Mr A] dated 5 September 2019 @ [9]; AAT file 1702984 @ f.32
[70] AAT file No 1702984 @ f22
[Mr A]’s evidence was that land dispute has now been transferred from his local Church to be dealt with by the main association in Ho Chi Minh City. Accordingly it appears that the issue is no longer in the local church’s care or control and that the dispute is now to be determined by the authorities in Ho Chi Minh City. The Tribunal notes that [Mr A] claims his [child] is now Deacon of the church.[71] [Mr A] did not provide any evidence of threats to his [child] as a result of his position within the Church.
[71] Statutory Declaration [Mr A] dated 5 September 2019 @ [15]; AAT file 1702984 @ f.32
[Mr A] claims that as Secretary of the church he was involved with “making this complaint” and his signature is on the complaint paperwork. He claims he received personal threats from the new land owners and was confronted by people with sticks and weapons who told him to withdraw the complaint. He claims they said they would not stop until the complaint was withdrawn. However, his evidence to the Tribunal was that the threats and harassment were made by individuals belonging to the family of the military officer and not by any local authority or officials. He claimed that the threats were made generally to the members of the Church and not to him specifically. However, he claimed that as an officer of the Church he is more vulnerable to be harmed than other members.
Depending upon the circumstances, persecution may occur by private groups or individuals in circumstances where the state has failed or is unable to provide effective protection from persecution.[72] That is where the state either encourages or is or appears to be powerless to prevent that private persecution. In Applicant A v MIEA, the High Court stated:
A person ordinarily looks to “the country of his nationality” for protection of his fundamental rights and freedoms but, if “a well-founded fear of being persecuted” makes a person “unwilling to avail himself of the protection of [the country of his nationality]”, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent....Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality.[73]
The willingness and ability of the state to protect its citizens may be relevant to whether the conduct giving rise to the fear amounts to persecution for the purposes of the Convention.[74] An adequate level of state protection will mean that the harm person fears will not amount to persecution.[75] Therefore while the agent of persecution need not be the state, the persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.
In this case [Mr A] claims that he fears harm from the ex-military officer’s family and states that their behaviour has been endorsed by the state. He states that he will not be protected by the government as ‘these people belong’ to the government. That is, they are people of the regime such as ex-military or government officials.[76] However, the Tribunal notes the country information which states that battles over land are the primary cause of complaints in the country and one of the ruling Communist Party’s biggest headaches.[77]
In Vietnam, all land belongs to the state, with people having only the right to use it. Land is collectively owned by the people and administered by the government on their behalf. Therefore, under such a system, property owners cannot have full and legal ownership of land. Their rights are limited to land use rights permitted within the law. Land users typically receive a land use right certificate (LURC), which shows the land user’s rights on the property.[78] The applicant did not provide any evidence in relation to the nature of the ownership of the Church land but based on the country information it appears that it would only have had a right to use the land.
[72] Chan v MIEA (1989) 169 CLR 379 per McHugh J at 430.
[73] Applicant A v MIEA (1997) 190 CLR 225 at 233, per Brennan CJ, referred to with approval in MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [19].
[74] MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [21]-[23]. The availability and efficacy of State protection can also be a relevant question in establishing whether an applicant has a well-founded fear of persecution.
[75] Horvath v Secretary of State for the Home Department, [2001] 1 AC 489; MIMA v Respondent 152/2003 (2004) 222 CLR 1 at [21].
[76] Statutory Declaration [Mr A] dated 5 September 2019 @ [16]; AAT file 1702984 @ f.32
[77] The Economist ‘Property disputes are Vietnam’s biggest political problem- The Communist Party do not know how to handle them’ 15 JUNE 2017 Vietnam Briefing, ‘Land Rights in Vietnam – What They Are and How You Can Acquire Land’ 25 June 2019 byDezan Shira & Associates, the country information reports that in Vietnam thousands of private, citizen-to-citizen land disputes arise each year presenting the authorities with the challenge of resolving the disputes in an orderly and efficient manner. It is reported that current economic, environmental and development pressures have led to a surge in the number and prominence of public land disputes in Vietnam. Unresolved or poorly-resolved disputes present a serious challenge to governmental and community legitimacy in Vietnam and contribute to social instability and insecurity.
101.The disputes can be referred to the courts but generally they are seen as inefficient. As such alternative dispute resolution forums are sought prior to entering the court system. When the state is a direct or indirect party to a dispute, the Vietnamese courts are encouraged to protect the ‘state benefit’ as defined by local political leaders. An article in The Economist reported on a dispute over farming land which had been confiscated for military use. In protest, the local villagers overpowered the police and held them hostage. As a result, the matter was settled without any repercussions from the authorities on the local villagers. [79]
[79] Public Land Disputes in Vietnam - The Asia Foundation102.In this case the dispute has arisen between the Church and the family of the ex-military official. Despite the agreement that the family would leave the premises they have refused to do so. As a result the matter has been referred to the Church’s central organisation in Hanoi. Given the efforts that have been taken to resolve the matter it appears that the state has assisted in reaching the settlement agreement. In addition the fact that the dispute has now been elevated to the central authority it also appears that the state has not hindered or acted in a manner that would frustrate the resolution of the dispute. The threats the applicant claims to have to have been subjected to are from individuals and not from any state players. As such the Tribunal finds that the applicants have not been subjected to any persecution or systematic or discriminatory conduct by the state authorities in respect of the land dispute as claimed. The issue is therefore whether there is effective protection by the state for the applicants.
103.A state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[80] No country can guarantee that its citizens will at all times and in all circumstances, be safe from violence.[81] What is required under the Convention is for the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[82] or a ‘reasonably effective police force and a reasonably impartial system of justice’.[83] In this case the DFAT report notes that the police in Vietnam are generally effective at maintaining public order and that the enforcement agencies in Vietnam are highly efficient in dealing with public disturbances and communal violence.[84] Therefore, based on the country information, the Tribunal finds that [Mr A] as secretary of the Church and [Mrs B] as a member of the Church would be able to receive effective protection for the state in relation to threats received from the family members of the ex-military officer.
[80] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.
[81] In MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26] per Gleeson CJ, Hayne and Heydon JJ
[82] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].
[83] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].
[84] DFAT Report @ p.22
104.Therefore, while [Mr A] may have experienced threats from the individuals living in the house built on the church land; there is no evidence that he was subjected personally to any systematic discriminatory conduct by the authorities as a result of the confiscation of the Church land or the subsequent dispute.
105.The Tribunal put to the applicant that given the land was held by the Church that he personally had no interest in the land. It appeared that it was possible for [Mr A] and [Mrs B] to avoid any future threats by them leaving and joining another church. The applicant however claimed that this was not possible as he was known to the family and he claimed that they would follow him.
106.Finally, [Mr A] claimed that he was forced to report to the authorities from 2000 to 2003 as a result of the Church land dispute. He claims that as a result of his perceived political opinion that as a result of the land dispute he was forced to recommence his reporting to the officials. In circumstances where it appears the land dispute had been ongoing for a number of years (i.e. the ex-army officer’s family was in possession of the land at the time the Southern government fell, the confiscation of the land in 1992 and a formal complaint being made in 1996), the length of time since he had stopped reporting to police as a result of him trying to flee the country and the country information which suggests that the government is not involved in systematic and discriminatory conduct over a land disputes, the Tribunal finds it unlikely that he would be required to resume reporting to authorities. As such the Tribunal does not accept that the applicant was required to report to police by reason of his involvement in the Church land dispute as claimed.
107.Accordingly, based on the country information and the applicants’ own evidence the Tribunal does not accept that that there is a real chance the applicants will suffer serious harm by reason of their membership of the local Church and its involvement with land dispute as claimed.
Members of an Evangelical Church
108.[Mr A] claims that he and his family had been members of an Evangelical Church[85] during the war. He claimed that the Communists did not like the Evangelical Church as they did not accept religion. Based on the country information the Tribunal accepts that there are limits placed on religious freedom in relation to unregistered organisations.[86] However, [Mr A] did not provide any evidence in support of his claim that he and his family were members of an Evangelical Church. Rather, the evidence from both applicants was that they are Protestant Christians.[87]
[85] Statutory Declaration [Mr A] dated 5 September 2019 @ [27], [30].; AAT file 1702984 @ f.31
[86] DFAT Report @ p.12
[87] Statutory Declaration [Mr A] dated 5 September 2019 @ [1].; AAT file 1702984 @ f.31; Statutory Declaration [Mrs B] dated 5 September 2019 @ [1], AAT file 1702984 @ f.29
109.In any event, it is reported that in 2001 the government officially recognised the independent Evangelical Church of Vietnam (ECVN), and has encouraged its offshoot, the Vietnam Evangelical Fellowship, which formed following a split in the ECVN. Le Quang Vinh, head of the government's Committee for Religious Affairs, read a statement recognizing the Federation of the Evangelical Churches of Vietnam in a ceremony in Ho Chi Minh City, which was attended by more than 1,000 people, including government officials and church followers.[88] As such, given that Evangelical Church has been accepted by the Vietnamese government the Tribunal finds that there is no real chance the applicants will be seriously harmed as a result being members of the Evangelical Church in the event they are returned to Vietnam.
Applicants Religion
[88] beliefnet ‘Vietnam Recognizes Southern Protestant Churches’, dated 3 April 2001 applicants claim to be Protestant Christians and members of the [Protestant Church] in the province of Bac Lieu. In particular, [Mr A] claims to have been an officer of the [Protestant Association]. The Tribunal notes that the settlement agreement refers to [Mr A] as the Protestant Association’s Assistant Secretary. Accordingly, the Tribunal accepts that prior to leaving for Australia [Mr A] was the Protestant Association’s Assistant Secretary and that the applicants were members of the [Protestant Church] as claimed.
111.The applicants claim that Christians are discriminated against in Vietnam, especially in regional areas such as Ho Phong. They claim that every church is required to report to their local government on their weekly activities and present an annual activity plan for approval.[89] While they acknowledge that there is more religious freedom in the cities, they claim that in regional areas, such as [Location], the local government tightly controls churches and monitors religious activity.
[89] Statutory Declaration of [C] dated 8 September 2019 @ [6]; AAT File No 1702984 @ f.27
112.The available country information notes that the US Department of State reported that some registered and unregistered Protestant groups experienced difficulties with local authorities in 2016.[90] DFAT assess that Protestants are able to practice their faith freely but continue to face a moderate level of harassment in remote areas due to the authorities’ reluctance to register house churches. DFAT notes that the authorities’ actions appear to be motivated by the perceived political views or activities of these groups, rather than religious beliefs.[91] It’s reported that the Government scrutinises some groups more than others, due to a perceived involvement with separatist political organisations.[92]
[90] DFAT Report @ p.13
[91] ibid
[92] ibid
113.[Mr A] claimed that there is a link between his faith, his church, perceived anti-government opinion and a highly politicised issue such as land rights and confiscation.[93]. However, the county information states that any action by the authorities is motivated by perceived political views or activities of a religious group rather than religious beliefs. Consistent with the country information, [Mr A]’s evidence was that he had been threatened by individuals, not for his religious beliefs, but because he was involved in the attempt to recover Church land which had been confiscated and built on by families of local officials. That is, as a result of a commercial dispute between the Church and the family members of the local officials over the ownership and use of the land in question and not because of his particular religious beliefs.
[93] Applicants’ submissions dated 9 September 2019 @p.9; AAT File No 1702984 @ f.42
114.As referred to above the Tribunal notes the country information which indicates that land disputes appear to be relatively common in Vietnam. While the Tribunal accepts that local authorities may harass members of religious groups, [Mr A] gave no evidence of the local authorities engaging in such behaviour against members of his local Church. In addition, he did not provide any evidence of systematic or discriminatory conduct by the government against members of his Church. Any threats that were said to be received by [Mr A] and members of the Church were by individuals engaged in the land dispute and not by reason of any systematic or discriminatory conduct by the authorities.
115.Accordingly, based on the applicant’s own evidence and the available country information the Tribunal finds that there is no real chance the applicants will be seriously harmed in the event that they return to Vietnam by reason of their religious beliefs.
Applicants as Returnee Asylum Seekers
116.The applicants claim that there is a real chance they will suffer serious harm as a returned asylum seekers upon thier return to Vietnam. However, most individuals who depart Vietnam illegally for the purposes of seeking asylum are likely to be able to return to Vietnam without facing harm. DFAT reports[94] that it is not aware of returnees who have applied for asylum being treated any differently to other returnees. Article 91 of the Penal Code 1999 prohibits fleeing abroad or defecting to stay overseas with a view to opposing the People’s administration; there are no reported cases of this provision being used against asylum seekers. There is no evidence that the applicants have fled Vietnam with the view of opposing the People’s administration. In fact [Mr A]’s evidence was that he and [Mrs B] arrived in Australia for the purposes of helping their daughter look after her children. There is no evidence of them having engaged in any political activities against the Vietnamese government while in Australia.
[94] DFAT report 2017 @ p.24
117.The applicants [Mr A] and [Mrs B] arrived in Australia [in] March 2009 and became unlawful non-citizens [in] October 2009. The applicants were located by officers of the Department [in] November 2014 during an s.251 warrant. The applicants lodged their applications for a Protection (Class XA) visa on 5 December 2014. Despite the excessive period of time the applicants remained unlawful, the Tribunal does not consider that this is in itself is an indicator to the Vietnamese government that the applicants have sought asylum. Nevertheless, if this was to occur, the Tribunal does not consider that, given the [Mr A] and [Mrs B]’s background, profile or the fact that they have sought asylum in a western country, would mean that they would be detained. While the Tribunal has accepted that [Mr A] was placed in a re-education camp and required to report to authorities as a result of trying to flee the country in 1979, there is no evidence of him having a political profile or acting in any manner that that may be considered contrary to the interests of the Vietnamese government. As such, if the applicants were detained it is likely it would not be for any extended period. While conditions in Vietnamese prisons are considered harsh,[95] in the unlikely event that the applicants are detained, the Tribunal does not consider that they would be detained for such a period of time as to constitute serious harm. As such, the Tribunal finds that there is no real chance that the applicants would suffer serious harm upon their return to Vietnam as returnee asylum seekers.
[95] DFAT report @ p.23
118.As such, based on the available country information, the Tribunal finds that the applicants do not face a real chance of serious harm upon their return to Vietnam as returnee asylum seekers.
The Applicants anti-communist political opinion.
119.The applicants claim as historical supporters of the Southern Vietnam, including the fact that they both had family members who fought for the South during the war, they are perceived as having actual or imputed anti-government and, by association, anti-communist political opinion. As a result they claim that they will suffer persecution in the event that they are returned to Vietnam.
120.The Tribunal accepts country information which indicates that the Vietnamese Government does not tolerate political expression against the Communist Party of Vietnam, the Government or its policies.[96] However, the applicant did not provide the Department or the Tribunal with any evidence of them having expressed any political views publically either in Vietnam or in Australia. They did not provide any documentary evidence by which it may be claimed that they had expressed views of being anti-communist or against the government of Vietnam in a manner that would be contrary to the interests of the Vietnamese Government or the Communist Party itself. There was no evidence that they have been politically active against the state of Vietnam in either in Australia or Vietnam. For example, there was no evidence that they are members of a political party or organisation through which they had expressed their views against the State of Vietnam.
[96] DFAT Report 2017
121.While the applicants claim to have been supporters of the South and that they had family members who supported and fought for the South, together with the fact that they had attempted to flee the country in 1979 and have been involved in an evangelical church and land disputes, that they are viewed as having anti-government and by association anti-communist political opinions. However, the Tribunal notes that the applicants departed Vietnam without any difficulty on a tourist visa and in fact, [Mrs B] had previously spent an amount of time in [Country] and was able to return to Vietnam without incident. There was no evidence of them being politically active or being associated with any group by which they may have a political opinion either actual or implied.
122.In addition [Mrs B] claims because her brother lives in America as an asylum seeker she had been imputed with an adverse political opinion. However, no evidence was provided to the Tribunal that [Mrs B]’s brother had been politically active against the regime or that the applicants had been politically active against the Vietnamese. The Fact that [Mrs B] had previously been able to visit her brother and return to Vietnam without incident indicates to the Tribunal that there is no real chance she or [Mr A] will be seriously harmed in the event that they return to Vietnam as a result of her brother living in the USA.
123.The country information cited above clearly states that the Government of Vietnam prevents the exit and entry of those individuals considered to have anti-government political profile. [Mr A] claims that he obtained a passport by bribing officials. He did not provide any evidence of how or who he bribed in order to obtain a passport. Nevertheless, the Tribunal notes that he travelled on a passport that contained his correct name and personal details. Despite his passport having all his correct information, he was not prevented from leaving the country. In addition he claims that he did not tell the police that he was leaving Vietnam. However, given that the Tribunal has not accepted that he was required to report to the authorities from 2000 to 2003 and on his own evidence he was not required to report to the authorities at the time of his departure from Vietnam, there appears to be no reason for him to inform police upon his departure from Vietnam. Finally, [Mr A] claims that he does not recall telling officials that the purpose of his travels was to visit his daughter. However, it is consistent with his evidence to the Tribunal that he travelled to Australia to visit his daughter and help care for his grandchildren. As a result, the Tribunal finds that it is more than likely that he would have provided this reason to the Vietnamese official as the reason for him traveling to Australia.
124.Therefore, given that the applicants were able to depart Vietnam without hindrance indicates that they had no political profile in Vietnam at the time of their departure. That is, they were of no interest to the Vietnamese authorities and had no adverse political profile as claimed. There is no evidence of them being politically active since arriving in Australia. As such the Tribunal finds that there is no real chance the applicants will suffer serious harm by reason of their actual or imputed political opinion as claimed as a result of them returning to Vietnam.
[Mrs B]’s mental health
125.The Tribunal notes that while it was open to [Mrs B] to have claimed that she was suffering from a mental health condition, she did not specifically make such a claim. The Tribunal has not received any medical evidence in support of her any mental health condition from which she may claim to suffer.
126.In any event, the Tribunal notes the country information which reports that while mental health care in Vietnam is underdeveloped, the government has established the National Mental Health Programme (NMHP) which covers approximately 30 percent of the country.[97] The Department of Psychiatry at Hanoi Medical University and the National Institute of Mental Health provide programs for psychiatrists in training and the psychiatric hospital system in Vietnam has 36 hospitals established across the country (including two National Psychiatric Hospitals located in the north in Hanoi, and the other in Bien Hoa city).
[97] Vietnam Briefing, ‘The Mental Healthcare Industry in Vietnam’, by Kyssha Mah 18 October 2018,
127.Therefore, while the Tribunal accepts that the mental health facilities in Vietnam are not ideal, from the available country information it finds that the applicant will be able to access treatment for any mental health issues with which she may be diagnosed. There is no evidence to suggest that as a citizen of Vietnam she will be denied access to the available mental health facilities on an equal basis with other citizens of that country. There is no evidence to suggest that Vietnam as a state has demonstrated systematic and discriminatory conduct towards the applicant or people with mental illness. In fact, while the country information indicates that medical services are under resourced, the Tribunal notes that there is no evidence to suggest that this is as a result of any systematic or discriminatory conduct by the State.
128.The Tribunal does accept that [Mrs B] may be subjected to some societal discrimination[98] in the event that she is diagnosed with a mental health condition. However, given that a coordinating body exists to oversee the treatment of mental health in Vietnam, the Tribunal does not accept that such discrimination will amount to serious harm.
[98] ibid
129.Accordingly, the Tribunal finds that finds that there is no real chance that [Mrs B] will suffer serious harm under s.36(2)(a) of the Act by reason of any mental illness she may be diagnosed with upon her return to Vietnam.
130.Having considered the applicants’ evidence, the available country information and having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing there is a real chance the applicants will be seriously harmed in the event that they return to Vietnam for reasons of their religion, political opinion or membership of a social group. As such, the Tribunal finds that there is no real chance of persecution for one or more of the reasons mentioned in Article 1 of the Convention in the receiving country.
131.As such, the Tribunal finds that the applicants are not refugees, pursuant to Article 1 of the Convention and Sections 91R and 91S of the Act, as defined the criteria in section 36(2)(a) of the Act is not satisfied for this reason. Accordingly, the Tribunal is satisfied that the applicants are not persons in respect of whom Australia has protection obligations under section 36.2(a).
Complementary protection
132.In considering whether the applicants meet the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the them being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
133.The applicants claim that they satisfy the requirements under s.36(2)(aa) by reason that they face a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicants claim that there is a real risk they will suffer significant harm for the reasons detailed in thier application for a protection visa as expressed above.
134.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.[99] It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicants will suffer significant harm in Vietnam by reason of their actual or imputed political opinion, by reason of the fact that their family members fought for the South, they attempted to flee [Vietnam] in 1979, [Mr A] had been placed in a re-education camp and was required to report to authorities, that they were Protestant Christians and members of a Church involved in a land dispute. While the Tribunal accepts that [Mr A] was Secretary of the Church, there was no supporting evidence to suggest that he or [Mrs B] (as a member of the church) would be specifically targeted by the family members. [Mr A]’s evidence was that general threats had been made by the ex-military official to the members of the congregation generally by holding a grenade. However, save for broad claims of threats having been received, he did not provide any specific evidence of threats by family members. As such the Tribunal does not accept that [Mr A] or [Mrs B] has received specific threats and that there is no real risk that they will suffer significant harm in the event that they return to Vietnam by reason of the Church land dispute.
[99] 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].
135.Finally, the Tribunal does not accept and finds that there is no real risk that the applicants will suffer significant harm in Vietnam by reason that they would be questioned as a returned asylum seeker or for any reason of [Mrs B]’s mental health.
136.The Tribunal has made earlier findings that the applicants do not face a real chance of serious harm arising from the their claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.
137.At no stage did the applicants in their statements attached to their application or to the delegate advance any other reason in their written or oral claims that they are owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicants’ accepted circumstances, to be considered.
138.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk they will suffer significant harm as required by s36(2)(aa).
CONCLUSION
139.For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) the Act.
140.Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
141.There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
142.The Tribunal affirms the decision not to grant the applicants protection visas.
Jason Pennell
Senior Member
Key Legal Topics
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Immigration
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