1703086 (Refugee)

[2019] AATA 6839

1703086 (Refugee) [2019] AATA 6839 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703086

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Brendan Darcy

DATE:6 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 November 2019 at 2:54pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – social group – member of family with existing profile – sexual assault victim – fear of being killed or tortured by community – fear of raising child under communist regime – credibility concerns – fears of access to hộ khẩu – did not provide more information on sexual assault – has capacity to find work – single mothers can register hộ khẩu – does not anticipate any chance of harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 91R, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Vietnam, applied for the visas on 30 June 2015. The delegate refused to grant the visas on the basis that the applicants were able to relocate within their country of reference.

3. The first named applicant, [First Applicant], will be referred to as the applicant or the first applicant; and the second named applicant, [Second Applicant], will be referred to as the second applicant or the applicant’s child.

   CRITERIA FOR A PROTECTION VISA

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

    The first applicant

11. The first applicant claimed to be born on [date] in Long An in Vietnam and claimed to be a citizen of Vietnam.

12. A copy of the first applicant’s valid Vietnamese passport is on the Departmental file ([deleted]).

13. She claimed that she speaks, reads and writes Vietnamese. Her religion is claimed to be Buddhist. She does not claim to belong to a particular ethnic group.

14. On Form 80 she declared that she has a partner who is a Vietnamese citizen. She did not state where he currently resides. She declared that her son was born in Australia on [date], he is a Vietnamese citizen and he resides in Australia. Her family composition also includes her mother who is a Vietnamese citizen residing in Australia, her step-father who is an Australian citizen and resides in Australia, and her brother who is a Vietnamese citizen residing in Australia.

15. The first applicant arrived in Australia as the dependent child of her biological mother’s Class UF Subclass 309 visa [in] August 2008 and remained onshore until [August] 2012. On [September] 2012 the applicant returned to Australia as the holder of a Class WB Subclass 020 bridging visa which ceased on 19 June 2013 and the applicant became unlawful. Since 17 December 2013 the applicant has remained in Australia as the holder of Class WE Subclass 050 bridging visas.

    The first applicant’s mother

16. The first applicant’s mother first arrived in Australia [in] February 2007 while holding a Class UL Subclass 697 visitor visa sponsored by [Mr A]. She departed [in] May 2007.

17. The first applicant’s mother arrived in Australia for the second time [in] August 2008 while holding a temporary Class UF Subclass 309 partner visa granted on the basis of her relationship with [Mr A]. Attached to the partner visa application were two of her children.

18. The first applicant’s mother arrived in Australia on a third time while holding the same partner visa [in] December 2010.

19. The first applicant’s mother and her children were unsuccessful in having the permanent Class BC Subclass 100 partner visa on 2 March 2011. She was then granted a bridging visa on 2 March 2011.

20. On 4 April 2011 she applied to have that refusal decision reviewed by the Tribunal.

21. On 2 August 2012, she was granted a Class WB Subclass 020 bridging visa on which she departed [in] August 2012. She then returned [in] September 2012 on the same bridging visa.

22. On 21 May 2013, the Tribunal affirmed the decision not to grant the first applicant’s mother and her children a Subclass 100 partner visa.

23. The bridging visa expired on 19 June 2013 after which first applicant’s mother became unlawful.

24. The first applicant’s mother applied to have the Tribunal’s decision on her partner visa reviewed on 24 June 2013.

25. The first applicant’s mother became lawful again when she was granted a Class WE Subclass 050 bridging visa on 2 December 2013 and has remained on a bridging visa.

26. The Federal Circuit Court dismissed the first applicant’s mother’s judicial appeal [in] April 2014.

27. The first applicant’s mother applied for a Ministerial Intervention on 13 May 2014, she requested the Minister to personally intervene in making a favourable decision to apply for a substantive visa. The outcome of the Ministerial request was not considered and the applicant was notified on 21 May 2015.

28. The first applicant’s mother applied for a Class XA Subclass 866 protection visa on 12 June 2015. She was not interviewed by the Department before a delegate on behalf of the Minister refused the applicant a protection visa on 8 March 2017. She applied to have the refusal decision reviewed by the Tribunal on 28 March 2017.

    The second applicant

29. The second applicant was born in [City 1] in Australia on [date]. It is claimed that the second applicant’s mother is the first applicant and his biological father was a citizen of Vietnam but he was neither an Australian citizen nor a permanent resident.

30. A copy of the second applicant’s Vietnamese passport is on the Departmental file.  

31. The second applicant has never departed Australia.

32. The second applicant’s family composition on Form 866C was declared to include his mother, grandmother and uncle, all of whom are Vietnamese citizens residing in Australia.

33. It is claimed on his behalf that his religion is Buddhist.

    Written claims

34. The first applicant’s claims are recorded on Form 866C and may be summarised as follows:

    ·     The first applicant left Vietnam with her mother following her mother’s marriage to an Australian citizen.

    ·     After her father died they were alone, they didn’t have anything to live on and they were harassed by their community. They faced harm every day. She had nowhere to go and became isolated. Her mother tried to commit suicide a few times.

    ·     They were always chased by her father’s brother and his family. Her father’s brother tried to rape. They had to run away and move from place to place as in Vietnam it is easy to find someone through the family.

    ·     They left Vietnam with the fear of being killed or tortured by their community as their mother was blamed for their father’s death because she is ‘not of good luck’.

    ·     She fears being killed or taken from his mother.

    ·     They are not safe in Vietnam.

    ·     As the government in Vietnam is communist they will not help her. She believes the government will harass her.

    ·     If she returns to Vietnam she will be tortured and kicked out by her community. She will be forced to live on the street and abused by the community everywhere in Vietnam.

    ·     The authorities are corrupt and only help people they know or who are rich. No one listens to the poor crying for their rights.

35. The second applicant did not have any of his own claims attached to his visa application at time of lodgement. The applicants did not lodge any supporting documents with their protection visa application.

36. A delegate on behalf of the Minister refused to grant the applicants a protection visa on 10 February 2017.

37. The applicants validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 22 February 2017 with the decision record attached.

38. The Tribunal held a joint hearing on 6 September 2019 with applicants along with related review applicants [Ms B] who is claimed to be the first applicant’s mother (case number [number]) and [Mr C] who is claimed to be the first applicant’s brother (case number [number]). The second applicant provided evidence and presented arguments on behalf of herself and the second applicant who is a minor and who did not provide any oral evidence. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

39. There were a large number of witnesses attending the hearing, including [Person D], [a person], [another person], [Mr A], [a person] and [Person E].

40. Submitted were a number of documents for the Tribunal to consider including:

    ·A petition signed by community members in support of the applicant remaining in Australia;

    ·A letter of support dated [July] 2019 by [an official] of [a company], [City 1];

    ·A letter of support dated [July] 2019 by [a person] who particularly notes the hardship of adapting to life in Vietnam that [Second Applicant], growing up in Australia, will experience if returned;

    ·Letter dated [July] 2019 by [an organisation] confirming [Second Applicant’s] attendance at their [premises] from [October] 2017 to [February] 2019 for [number] days per week;

    ·Letter of support dated [July] 2019 by [a person] at [another organisation] outlining [First Applicant’s] community involvement and integration;

    ·Letter (undated) by [First Applicant] claiming that she fears raising her child under the communist regime because the communist government assumes anyone living overseas will have a lot of money and her family will be threatened for money they don’t have. She fears for the safety of her son, who grew up in Australia, in Vietnam;

    ·Statement by [Ms B] dated [August] 2019;

    ·Statement by [Mr A] dated [July] 2019 outlining [Ms B’s] migration history and the their relationship;

    ·Letter dated [July] 2019 by [Mr C];

    ·Statutory declaration of support dated [August] 2019 by [a person];

    ·Letter of support dated [July] 2019 by [another person];

    ·Statutory declaration of support dated [July] 2019 by [Person D]; and

    ·Letter of support (undated) by [Person E].

41. No further documents or submissions were required at the end of the hearing.

    Non-disclosure notices

42. There are no non-disclosure notices or certificates on the applicant’s file.

    Country information: Vietnam

43. According to the most recent DFAT country information report on Vietnam dated 21 June 2017,  it states the following about that country’s system of household registration: 

    Ho Khau (household registration)

    5.23 The 2006 Law on Residence establishes the household registration system and policies. There are two categories of registration: temporary and permanent (reduced from four under the previous law). In 2013, revisions were made to the law in response to concerns raised by the MPS over rapid urbanisation in major cities and more people changing their status to permanent after one year of residence (previously three years). The revisions tightened the requirements for permanent residence from one year to two years of continuous residence. The 2012 Capital City Law further tightened requirements for permanent residence in Hanoi to three continuous years of residence before status can be changed to permanent.

    5.24 Ho Khau registration is initially obtained through the registration of a person’s birth with the village or provincial administrators. Officials use the registration system to determine the levels of services provided to villages and provinces, linking a person’s right to access government healthcare, education and other services to their place of residence. Ho Khau registration is also essential for obtaining employment with the government or in state-owned enterprises. Although health care facilities can be accessed anywhere within Vietnam in emergency cases, public facilities may turn away non-life-threatening cases where the person is not properly registered. Access to schools is determined by Ho Khau registration and administration fees may apply to children not registered in an area zoned for a particular school. For members of minority groups, Ho Khau registration is essential to access development-related entitlements in rural and regional centres. This may include additional language training or employment related training.

44.   Below are extract from the Department’s 30 September 2013 background paper on household registration (hộ khẩu) in Vietnam. The Tribunal is satisfied that no significant developments in the operation of the hộ khẩu have been undertaken since this background paper.

Hộ khẩu is, in short, “the major form of proof that a person has an established address and is officially associated by blood or marital relationship to the other family members listed on the Registry”.[1] Reporters Without Borders describes the hộ khẩu as the “sole proof of address officially recognized in Vietnam”.[2] In addition to hộ khẩu, each citizen aged over 14 years must possess a national identity card.[3]

[1] Immigration and Refugee Board of Canada 2009, Vietnam: Whether an individual’s rights to obtaining a passport, employment, education and other civil rights are affected if he or she does not have household registration documentation, VNM103086.E, UNHCR Refworld, 27 February <

[2] Reporters Without Borders 2013, The Enemies of Internet 2013 – Vietnam, 15 March <

[3] For further information regarding identity cards, see RRT Country Advice 2012, Country Advice VNM39759, 11 January

A person cannot, in principle, have their name listed on more than one hộ khẩu.[4]

[4] Le, B D et al 2011, Social protection for rural-urban migrants in Vietnam: current situation, challenges and opportunities, January, Centre for Social Protection, pp.5-6 <

Eligibility

As mentioned above, every resident of Vietnam is expected to be listed on a household registry.[5] Sources report that some groups have, nevertheless, faced barriers in registering:

[5] US Department of State n.d., Vietnam Reciprocity Schedule < Arnold, D 2013, ‘Social Margins and Precarious Work in Vietnam’, American Behavioral Scientist, vol. 567, no. 4, 468, 1 March, p.476.

·In March 2012, the United Nations Committee on the Elimination of Racial Discrimination assessed that that the hộ khẩu system “results in discrimination against ethnic minorities belonging to “unrecognised” religious groups”.[6]

[6] For an overview of religion in Vietnam, including the state’s approach to regulating religion, see US Department of State 2013, International Religious Freedom Report 2012 - Vietnam, 20 May, Sections I and II < ; United Nations Committee on the Elimination of Racial Discrimination 2012, Consideration of reports submitted by States parties under article 9 of the convention, CERD/C/VNM/CO/10-14, eightieth session, 13 February – 9 March, Office of the High Commissioner for Human Rights, p.5 <

·In 2005, the United Nations Children’s Fund (UNICEF) reported that although single mothers are eligible to register their children for hộ khẩu, many do not because they “mistakenly believe that only children of married parents can be registered”.[7]

[7] United Nations Children’s Fund 2005, Situation Analysis of Institutional and Alternative Care Programmes in Viet Nam, UNAIDS, p. 36 <

·In 2008, Than Nien News[8] quoted the head of a sexual health clinic in Hanoi, who stated that members of sexual minorities “who are open about their sexuality cannot even get an ID card or work for public companies”.[9] Article 10 of The Marriage and Family Law of the Socialist Republic of Vietnam 2000 specifically prohibits same sex marriage.[10] In July 2012, the Ministry of Justice announced that it would consider recognising same-sex marriage,[11] and officials reportedly discussed the issue in a cabinet meeting on 13 August 2013.[12]  This change had not come to pass at the time of writing, with Gay Star News reporting that a proposal to amend the Civil Code to recognise both heterosexual and same sex cohabitation will likely be discussed in the National Assembly during October 2013.[13] It follows that same sex couples would currently not appear as spouses on household registries.

[8] Thanh Nien News is published by the Vietnam National Youth Federation, affiliated with the CPV <

[9] ‘Things looking up for gay community’ 2008, Thanh Nien News, 2 May < Immigration and Refugee Board of Canada 2010, Viet Nam: Treatment of homosexuals, including legislation, availability of state protection and support services, VNM103323.E, UNHCR Refworld, 8 January <

[10] Walsh, T 2011 ‘The Law of the Family in Vietnam: Assessing the Marriage and Family Law of Vietnam’, California Western International Law Journal, Vol.42, p.107, Index to Legal Periodicals and Books Full Text database,; The Marriage and Family Law of the Socialist Republic of Vietnam 2000 (Vietnam), Law No.22/2000/QH10,art 10, promulgated 9 June 2000 (effective 1 January 2001), Socialist Republic of Vietnam Government Web Portal <

[11] Shapiro, L 2012, ‘Vietnam Gay Marriage News Brings Hope, Uncertainty to Gay Vietnamese Americans’, Huffington Post, 9 August < Mason, M 2012, ‘Vietnam considers allowing same-sex marriage’, The Seattle Times, 29 July < ‘Vietnam holds first gay pride parade’ 2012, ABC News, source: Agence France Presse, 6 August < 5/vietnam-holds-first-gay-pride-parade/4178626> CX292632)

[12] This information is attributed to Tuoi Tre News, a state news source published in Ho Chi Minh City. ‘Vietnam Considers Legalizing Same-sex Marriage, Surrogacy’ 2013, Vietnam News Brief Service, FACTIVA, 15 August

[13] Sanders, D 2013, ‘How Thailand and Vietnam are moving on same-sex ‘marriage’’, Gay Star News, 30 August <

·Similarly, de facto couples do not enjoy the same legal status as married couples.[14] Nevertheless, the United States Department of State (USDOS) claims that cohabitants sometimes appear as spouses on Vietnamese household registries. Whereas household registries maintained by the Public Security Bureau,[15] marriages are registered separately with the appropriate People’s Committee at rural commune/urban ward level.[16]

[14] The Marriage and Family Law of the Socialist Republic of Vietnam 2000 (Vietnam), Law No.22/2000/QH10,art 11(1), promulgated 9 June 2000 (effective 1 January 2001), Socialist Republic of Vietnam Government Web Portal <  

[15] US Department of State n.d Vietnam Reciprocity Schedule < <Attachment>; Hardy, A 2001, ‘Rules and Resources: Negotiating the Household Registration System in Vietnam under Reform’, Journal of Social Issues in Southeast Asia, October <h ttp://web.ebscohost.com/ehost/detail?vid=4&hid=108&s id=d363d276-3afc-4c55-abc0-d6d7ca256190%40sessionmgr111& bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=aph&AN=5435904> 

[16] The Marriage and Family Law of the Socialist Republic of Vietnam 2000 (Vietnam), Law No.22/2000/QH10,art 2(2), promulgated 9 June 2000 (effective 1 January 2001), art 11-14; 102, Socialist Republic of Vietnam Government Web Portal < Hardy, A 2001, ‘Rules and Resources: Negotiating the Household Registration System in Vietnam under Reform’, Journal of Social Issues in Southeast Asia, October <h ttp://web.ebscohost.com/ehost/detail?vid=4&hid=108&s id=d363d276-3afc-4c55-abc0-d6d7ca256190%40sessionmgr111& bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=aph&AN=5435904> (CISNET Vietnam CX266078)

·USDOS also claims that foster children may be listed on hộ khẩu as the householders’ biological children.[17]

[17] US Department of State n.d., Vietnam Reciprocity Schedule <

Additionally, internal migrants often face difficulties obtaining hộ khẩu, particularly permanent status, when they move to a new location. This is particularly the case for migrants who relocate to urban areas. Section 3.2 provides information regarding eligibility for permanent, as opposed to temporary, hộ khẩu status.

[…][…]

Deregistration and Reinstatement of Hộ Khẩu

Deregistration

In some circumstances, residents may have their household registration revoked. The IRBC describes a range of circumstances that may apply:

In 18 February 2009 correspondence, an official at the Consulate General of Canada in Ho Chi Minh City, Vietnam stated that individual’s names are removed from the household registration (hộ khẩu) under the following circumstances:

1) ... [B]eing declared disappeared or dead by the Court;

2) Being recruited by the Army, Police and living in barracks;

3) Having immigrated abroad;

4) Being registered at a new residence; in this case, the local authority that processes the new permanent residence of the citizen has the responsibility of informing the delegated authority for issuing the certificate of household move to remove the permanent residence of that individual at the previous residence.

The Official also indicated that persons who have been absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence as stipulated.[18]

[18] Immigration and Refugee Board of Canada 2009, Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment, VNM103087.E, UNHCR Refworld, 24 February <

Vietnam’s constitution allows for freedom of movement, including freedom to travel abroad. Article 68 states: “The citizen shall enjoy freedom of movement and of residence within the country; he can freely travel abroad and return home from abroad in accordance with the provisions of the law”.[19]

[19] UK Home Office 2013, Country of Origin Information Report – Vietnam, 9 August, p.136 < Immigration and Refugee Board of Canada 2009, Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment, VNM103087.E, UNHCR Refworld, 24 February <

According to an official at the Consulate General of Canada in Ho Chi Minh City, who was quoted by the IRBC in 2009, migrants who have been absent from their place of permanent residence for more than 6 months without notifying authorities of their temporary absence and without explanation may therefore have their names struck from the local hộ khẩu registry. The same official noted that practices relating to hộ khẩu paperwork may vary slightly from province to province.[20] According to the IRBC, people who register their permanent residence at a particular address who “in fact do not live in their permanent residence address without any plausible reasons, or cannot live there” may also have their names crossed off the relevant household registry.[21]

[20] UK Home Office 2010, Country of Origin Information Report - Vietnam, UNHCR Refworld, 19 May, p.66 <

[21] Immigration and Refugee Board of Canada 2009, Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment, VNM103087.E, UNHCR Refworld, 24 February <

According to Viet Nam Net Bridge, many Vietnamese who study overseas for extended periods experience hộ khẩu deregistration. Some are apparently aware that their names are removed from household registries, and this may even occur prior to their departure from Vietnam. Others discover that their names have been removed after they return to the country and attempt to do paperwork.[22]

[22] ‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March <

A March 2013 report from Viet Nam Net Bridge notes that, according to a ward-level police officer,[23] the 2007 law removed some categories of citizens who were previously at risk of having their household registration cancelled – namely those travelling abroad for extended periods and prisoners.[24] Another Viet Nam Net Bridge article, dated 2013, states that “Viet Nam has recently slackened restrictions on policies recognising overseas Vietnamese under the Law on Residence, allowing them to have dual-nationality for the first time”.[25]

[23] For an overview of Vietnam’s government structure, see RRT Country Advice 2013, Vietnam: Marriage And Divorce, Issues Paper, 28 February, Section 2.2

[24] ‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March <

[25] ‘Business in Brief 10/03’ 2013, Viet Nam Net Bridge, 10 March < 28 February 2013, Viet Nam Net Bridge reported that a draft residence law was before the National Assembly Standing Committee. The draft law reportedly provided for prisoners to have their permanent hộ khẩu status revoked. The draft law also provided for those who have been absent from Vietnam for two years and those who join the army to be deregistered.[26] These provisions were however reportedly removed from the draft legislation. That said, a 2013 article in Viet Nam Net Bridge contains a quote from a police officer which stated that those “going abroad for resettlement” may have their hộ khẩu cancelled under the current legislation.[27]

[26] Ngoc, L 2013,‘Going abroad for two years, people to be removed from family record books?’, Viet Nam Net Bridge, 26 February <

[27] ‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March <

In 2008, Viet Nam News reported that Hanoi police were checking household registration books for “suspected people” and “unusual relationship[s]”, and that those who were not registered correctly “would be punished”.[28]  The report did not include further information regarding what would constitute punishment in this context.

[28] ‘Police check up on household registration papers in capital’ 2008, Viet Nam News, 11 October <

In 2009, the International Federation of Human Rights League reported that high profile former prisoner Thich Quang Do, from the Unified Buddhist Church of Vietnam,[29] had still not been granted a hộ khẩu 10 years after his release.[30]

[29] An unregistered Buddhist group.  See US Department of State 2013, International Religious Freedom Report 2012 – Vietnam, 20 May <

[30] International Federation of Human Rights Leagues 2009, Human Rights Violations in the Socialist Republic of Vietnam: a Parallel NGO Report by Vietnam Committee on Human Rights and International Federation of Human Rights (FIDH), p.7 < Ac (CISLIB Vietnam 22473) 

Reinstatement of Hộ khẩu

Migrants who have had their permanent residency status revoked can apply to have their residency status re-instated. In 2009, the Saigon Daily[31] quoted Senior Lieutenant-Colonel and Head of the Police Bureau of Administrative Management on Social Order, Vo Van Nhuan:

[31] Saigon Daily is run by the CPV Ho Chi Minh party committee <

Based on Article 2 of the Law of Residence [2007], Vietnamese people who live in a foreign country but still retain their Vietnamese citizenship can apply for a ho khau when returning to the country to live.[32]

[32] ‘Online Exchange Between Police Leader and SGGP Readers About Residence Law Implementation’ 2007, Saigon Daily, 29 July <

In 2009, the IRBC cited an official from the Canadian Consulate General in Ho Chi Minh City who listed the requirements returning Vietnamese nationals should have in order to regain hộ khẩu. These include:

a Vietnamese passport or travel document which has a stamp verifying entry… at the border gate; Proof of [Vietnamese nationality] granted by the Vietnam representative agencies overseas, accompanied by proof of the permission [to return] to Vietnam issued by the related authority; Certificate of Vietnamese nationality granted by the People’s Committee of provinces and cities directly under central authority, accompanied by proof of the permission [to return to] Vietnam for permanent residence issued by the related authority.[33]

[33] Immigration and Refugee Board of Canada 2009, Vietnam: Process for being reinstated onto a household registration, UNHCR Refworld, VNM103088.E, 26 February <

On 5 August 2013, the Department of Foreign Affairs provided the following information, from Vietnam’s Ministry of Public Security, regarding the hộ khẩu reinstatement process:

Following DFAT Report 1515 of 24 June 2013, the Vietnamese Ministry of Public Security (MPS) has given Post formal advice on the circumstances in which a person may reapply for household registration in Vietnam. MPS’s advice is set out in paras 2 to 4 below.

2. Vietnam’s Residency Law and accompanying regulations ensure Vietnamese who’ve been living overseas can register for permanent residency and receive household registration papers. Nothing in the Residency Law makes registration more difficult for individuals who no longer have relatives in Vietnam or who have acquired a criminal record overseas.

3. To reapply for permanent residency, returning Vietnamese must provide the following:

·     a declaration of any changes to household registration details and members

·  a declaration of current household members

·  documentary evidence of a legal place of residence (unless the person is accepted for registration with an existing household)

·  a valid foreign passport or residence permit 

·  a repatriation document issued by a Vietnamese representative office in the country the applicant is leaving 

·  a Vietnamese passport with an entry permit stamp from Vietnamese border authorities (if the person still holds a valid Vietnamese passport)

4. To register for residence in a centrally-administered city, the person must submit an application for residency to the local police and allow 15 days for processing.

5. MPS hasn’t told Post whether household registration would be possible for a person deprived of Vietnamese citizenship […] Post’s understanding of the Vietnamese version of Article 23 (which we consider reliable) is that a person deprived of Vietnamese citizenship must wait at least five years before reapplying. Post asked the Justice Ministry for formal advice on Article 23 but, despite prompting, did not receive a response.

6. Although a person may be deprived of citizenship, this requires a formal act by the Vietnamese Government.[34]

A March 2013 article published by Viet Nam Net Bridge addressed deregistration and re-registration issues for Vietnamese students who stay overseas for extended periods. The article quotes one student as saying that the re-registration process can take a few months. As mentioned in Section 6.1, some students are aware that they will need to apply for re-registration on return to Vietnam while others are not aware that they have been de-registered until they return and attempt to engage in a formal administrative process.[35]

March 2012 advice from DFAT states that returnees who are failed asylum seekers are not targeted by the authorities for harassment or discrimination, and that returnees are able to obtain registration if their previous registration has lapsed.[36]

[34] Department of Foreign Affairs and Trade 2013, DFAT Report No. 1528 – Vietnam: RRT Information Request: VNM422257, 5 August; DFAT also provided a copy of information from the International Co-operation Department, Ministry of Public Security, as attached.

[35] ‘Public Security Ministry removes provision on deregistration’ 2013, Viet Nam Net Bridge, 1 March <

[36] Department of Foreign Affairs and Trade 2012, DFAT Report 1364 – Vietnam: RRT Information Request VNM39900, 6 March

ASSESSMENT OF CLAIMS AND FINDING

Country of reference

1. The Tribunal notes that both the applicants have Vietnamese passports and citizenship. No one has claimed on behalf of the second applicant, although born here, that he is a citizen of any other country given both his biological parents were not Australian citizens, Australian permanent residents or eligible New Zealand citizens at the time of the second applicant’s birth in Australia.

2. Based on the available information, the Tribunal finds that the applicants are citizens of Vietnam, that Vietnam is the applicants’ receiving country for the purposes of the refugee and complementary protection assessment.

   Third country protection

3. There is no evidence before the Tribunal to suggest that the claimants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Membership of the same family unit

4. Regulation 1.12(4) states the applicant who is a member of the same family unit of the family head.

5. With no evidence to the contrary, the Tribunal accepts the first applicant is the biological mother of the second applicant who is a dependent minor on the first applicant.

6. It follows from this that the fates of this review application before the Tribunal depends on the outcome of the second applicant being a ‘dependent child’ – and vice versa - and that the second applicant’s mother is his ‘family head’ pursuant to the operation of s.36(2)(b).

7. Accordingly the Tribunal is satisfied that the first and second applicants are members of the same family unit of the other review applicants mentioned above purposes of r.1.12(4).

8. It is noted and accepted the first applicant is the biological child of the applicant named in review application [number] and that she is the biological sister of the applicant mentioned in review application [number]. There is no suggestion the first applicant has any disabilities or significant impairments to work, other than her care responsibilities as a mother to the sedonc applicant. While it accepted all the review applicants share a close emotional and psychological bond, the Tribunal finds that the first applicant is an adult who has the capacity to find work and accommodation without her other relatives. It is not satisfied the first applicant is wholly or substantial reliant on her mother or even her adult brother for financial, psychological or physical support.  There is no suggestion in the first applicant’s claims that her mother or brother had been or are dependent on her or the other applicant at all. Furthermore the second applicant is not a dependent child of a dependent child as required by r.1.12(4)(c).

1. The Tribunal finds that regardless of this application, neither the first nor the second applicant are not members of the family unit of these other review applicants mentioned in [number] and [number].  Accordingly, they cannot satisfy s.36(2)(b)(i) or (c)(i) regardless of the outcome of those other review applications, or vice versa.

   Credibility findings

2. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

3. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

4. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

   The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

6. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

   Accepted personal circumstances

7. The Tribunal accepts the applicant was born in [date] in Long An in southern Vietnam; that her biological father passed away while her mother became a widow before remarrying an Australian citizen. The Tribunal accepts the applicant travelled to Australia with her mother in 2008 while holding a partner visa as a dependent. It also accepts that [Mr A] who provided evidence at the scheduled hearing, had been her mother’s sponsor for a partner visa and that he had been her step-father.

8. It is also accepted the first applicant has only one brother with whom she both travelled to Australia in 2008 as minors, and no sisters. It is further accepted that the applicant is the mother to the second applicant, [Second Applicant], who was born in Australia in [date].

9. The Tribunal also accepts the applicant returned to Vietnam in 2012 to visit her grandfather who resides in his own house in southern Vietnam.

10. It is also accepted the applicant can speak read and write in Vietnamese and that she has limited education and English language capacity and little work experience since arriving in Australia.  

11. It also accepts the applicant has resided in Australia in a house with his mother, his sister and his nephew with [Mr A] and other in-laws of his mother in [City 1]. 

12. It is also accepted that the applicant has been not engaged and has never had a long term spousal partner or relationship. The applicant explained that the second applicant’s biological father departed for Vietnam some time ago and remains in contact. The Tribunal accepts this.

    Written claims at the time of application and claims as presented at the scheduled hearing

13. While it is accepted by the Tribunal that a number of personal attributes to be credible, there are many other credibility concerns relating to this review application.

14. At the time of application and right up to the time the primary decision was made, the applicant provided a set of claims that he feared returning to his country of nationality and reference due to the following reasons:

    ·     After her biological father’s death, members of her father’s family tried to sexually assault the first applciant as a teenager.

    ·     The first applicant’s family ran away and moved from place to place because it is easy to find someone in Vietnam and that they left Vietnam because they feared being killed or tortured by their community because his mother was blamed for his father’s death as she is ‘not of good luck’.

    ·     The applicant fears he will be tortured and kicked out by her community and that she will be forced to live on the street and abused by the community everywhere in Vietnam and that the authorities are corrupt.

15. At the scheduled hearing, the applicant was asked to outline her written claims for Australia’s protection obligations that she submitted to the Department in 2015. The applicant initially said that she did not know much as it had been prepared by her mother, her step father and her lawyer. She further responded that she signed the document but did not know the content. She said that her fears at the time of application were based on the second applicant not being able to speak Vietnamese and that he is educated in Australia in English. None of these specific claims are mentioned in her written claims at the time of application. 

16. The Tribunal notes that neither the other review applicants mentioned above were able to recall their written claims during the combined hearing.

17. However, the applicant provided a new set of late claims to the Tribunal that were not raised as claims or that evidence was presented before the primary decision was made.

18. This set of claims reflected her own fears that there was nowhere to live in Vietnam; that her household registration will be denied to her (and her son) and that she will not be able to work as a sole parent of young child. The Tribunal enquired into the reasons she could not work at least part time, say the equivalent of three days a week, given her son is of school age. The first applicant further claimed that she has not completed school and does not have a trade. The Tribunal enquired that there are many employment opportunities in Vietnam for unskilled workers, to which the first applicant claimed that she has been in Australia for a long time and is used to everything here in Australia. The Tribunal also stated the country information indicates that she will be able to re-register her hộ khẩu at her grandparents, even if temporarily before moving to a large city, to which the first applicant stated that her grandparents are old and her uncle lives at that residence.

19. The Tribunal also notes that her step father, [Mr A], provided oral evidence that he had particular fears that the applicant had not skills and as a step father she will not be able to many jobs other than become a prostitute, although he acknowledged there are many unskilled jobs in Vietnam. It is also noted that she had not raised any fears of persecution or significant harm arising from sexual assault (although her mother did).

20. At no stage did the first applicant advance her being a person claiming to have refugee status based on one of the five reasons mentioned in s.5J(1)(a) to have a well-founded fear, if she were to return to Vietnam.

21. The Tribunal has also considered the testimony of the other review applicants. Both her mother and her brother could not recall their written claims at the time of application. While there were many witnesses who attested to the good character of the applicant and the other review applicants, only [Mr A], the applicant’s step-father, provided reasons as to the adverse reasons his step daughter and the second applicant will face a real chance of serious harm or a real risk of significant harm, if returned to Vietnam.

22. The Tribunal acknowledges that the first applicant will be returning to Vietnam as a sole parent and that this would be a distressing situation. The Tribunal accepts that the first applicant as a sole parent will have difficulties in finding employment back in Vietnam where she has no history of work experience as well as the responsibility of being the primary carer of her young son. However the Tribunal has credibility concerns that the applicant did not hold any deep or urgent fears, either subjectively or objectively held, of persecution, including deep and urgent fears about herself and her son facing a well-founded fear of persecution for any reason mentioned in s.5J(1)(a), if returned to Vietnam. 

23. Firstly, the first applicant has not made it his own personal responsibility to understand the claims she submitted in 2015 as an adult and provided no adequate reason for forgetting and abandoning those written claims.

24. Secondly the applicant’s delay in applying for a protection visa appears to be motivated by the applicant and the other review applicants mentioned in this decision having their visa options considerably narrowed after their appeals for a partner visa for her mother were unsuccessful.

25. Thirdly, the country information does not support the first applicant’s specific fears about finding no accommodation and being restricted in accessing hộ khẩu.   As discussed in the hearing, the Tribunal accepts the applicant is likely to be questioned about his absence in Australia, either on arrival or when she re-registered for hộ khẩu. As the country information above indicates, while there may be some delay in obtaining hộ khẩu in Vietnam amounting to weeks and possibly months for those whose registrations have lapsed, there is no reason to accept it will not be granted given registration is designed to know the whereabouts of its citizens. The Tribunal accepts that the applicant held these apprehensions genuinely due to his limited experiences in dealing with administration in Vietnam and on the basis of what she has received by hearsay. It was discussed in the hearing that it was open to the applicant to return, at least temporarily, to his grandfather’s residence for registration purpose before moving onto to other parts of Vietnam for work and accommodation. The Tribunal has not been able to identify any strong reasons to accept there are any objective reasons to accept she has any real chance of serious harm for a nexus reason or any real risk of significant harm arising from Vietnam’s hộ khẩu system.

26. Fourthly, the first applicant has not advanced at any stage that she has any anti-government profile with the authorities or any anti-government political opinion, imputed or otherwise, either before he departed Vietnam or since arriving in Australia. It is accepted there is a real chance and a real risk of the authorities making enquiries of the applicants in this matter and the other review applicants returning as failed asylum seekers. However the country information provided by the DFAT in its most recent report states returns of failed asylum seekers 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. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations.  Furthermore, the first applicant has not advanced any political opinion claims, imputed or otherwise, that he has any profile with the authorities based on his personal views about the government of Vietnam. Based on this country information and the lack of the applicant’s adverse profile within his country of reference and nationality, the Tribunal does not accept the first applicant have any deep or urgent fears, subjectively fears of persecutions and no genuine or actual objectively held fears of persecution for this reason.

27. Fifthly, although her written claims vaguely outlined a specific fear of sexual assault, she did not advance this any further, indicating that she did not personally hold this fear urgently or deeply either at the time of application or during the hearing.

28. Lastly, as indicated in the earlier evidence, the applicant’s claims closely resembled those claims made by the first applicant’s mother in her lodged application for a protection visa. During the combined hearing, the applicant’s mother stated she herself could not recall those claims, including about sexual harassment or assault.  The applicant responded at the hearing that she signed the claims and did not know what the written claims contained as it had been prepared on her and her son’s behalf. This behaviour towards submitting such serious matters that claim to be solemnly true and correct is deplorable.

29. Section 423A of the Migration Act requires that in circumstances where the Tribunal is not satisfied with the explanation then the Tribunal is to draw an inference unfavourable to the credibility of the claim.

30. For the reasons listed above and noting s.423A, the Tribunal find that the applicant’s explanation for providing a second set of late claims after the primary decision was completed relating to fears of extreme destitution and repression by the government due to a lack of household registration and/or a lack of employment opportunities as a failed asylum seeker were significantly exaggerated are not satisfactory or reasonable.

31. For these reasons, the Tribunal does not accept them.

    First applicant: real chance of serious harm or real risk of significant harm arising written and oral claims

32. For the reasons stated above, the Tribunal does not accept the first applicant’s abandoned written claims that after her biological father’s death, members of father’s family tried to sexually assault her or even her mother or that her mother was considered ‘a bad luck’ woman blamed for her first husband’s death or that her family was forced to move from one location to another because of this harassment or that she and her family departed Vietnam feared be arbitrary deprived of their lives or tortured or even ostracised. 

33. The first applicant’s oral claims did not completely resile from her original written claims that she will be genuinely and adversely affected by returning to Vietnam based on her personal and economic circumstances, in that she subjectively holds fears of destitution at the time of application and at the time of the scheduled hearing.

34. Even though the first applicant has limited education and little work experiences and has a dependent school aged child, speaks Vietnamese and does not have a disability that prevents her from engaging the labour market in her country of reference.  While the economy is growing in sophistication in Vietnam, there is no suggestion that she cannot enter work and find low skilled work with that country’s economy.  Furthermore, the Tribunal finds there are no forces under her circumstances whereby she will be coerced or driven in to choosing sex work over other low skilled work, as suggested by her step father, either for any reasons mentioned in s.5J(1)(a) or any other reason.  

35. The Tribunal accepts the adjustment in returning to Vietnam will be challenging and even onerous, especially with a dependent. However, the Tribunal does not anticipate any real chance of serious harm or any real risk of significant harm arising from her returning to Vietnam, registering her residential address or addresses, the denial of any services or the capacity to employment or that the authorities will assume they are rich forced returnees. Furthermore, the Tribunal finds there are no nexus reasons for these fears involving systematic and discretionary conduct and that there is no intent on the part of the authorities and the labour market to harm the first applicant, if she were to return. 

36. As the real chance of anticipated and prospective harm arising from destitution and being denied hộ khẩu  or even as failed asylum seeker is not systematic or discriminatory, the Tribunal finds that the first applicant does not satisfy any of the elements of subsections.5J (4)(a),(b) or (c).  The Tribunal accordingly finds that the applicant does not have any well-founded fear of persecution for any reasons mentioned in s.5J(1)(a), in returning to anywhere within Vietnam, either now or into the foreseeable future, as required by s.36(2)(a).

37. As the ‘real chance’ standard is the same the ‘real risk’ test of the alternative complementary protection provisions, the Tribunal is satisfied there is a real risk of harm but not significant harm. Significant harm is different from the concept of serious harm as required by 91R(1)(b)/s.5J(4)(b) in the context of s.36(2)(a).[37]  The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Vietnam and she will not be deliberately stymied in re-registering hộ khẩu. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself if removed from Australia, it does not accept the first applicant will not be able to access paid employment anywhere in Vietnam, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A).The Tribunal, accordingly, does not have substantial reasons for believing the first applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia for Vietnam, will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment, arising from these new claims raised at the scheduled hearing. 

    [37] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

    Claims on behalf of the second applicant

38. As mentioned above, the second applicant is a minor who was born in Australia and has never visited his country of citizenship. His claims were made on his behalf by the first applicant who is his biological mother.

39. According to the written claims at the time of application do not mention any specific serious or significant harm will occur to the second applicant if he were to return to Vietnam. However there are otherwise sweeping claims that that the first applicant believes the communist government in Vietnam will not assist the second applicant’s mother or that she will be tortured or kicked out by her community or that the authorities are corrupt who will not assist the poor crying for their rights.

1. As outlined above, it follows that as the first applicant has abandoned her written claims made on behalf of herself and the second applicant, the Tribunal cannot accept the second applicant has a real chance of serious harm for one of the reasons mentioned in s.5J(1)(a) or a real risk of significant harm based on these abandoned written claims. 

2. During the hearing, the first applicant expressed her fears for the second applicant included not having a place to live, that household registration would be denied to them both and that with a child, she will not be able to find work and because she has limited education. When asked about the second applicant’s biological father, the first applicant claimed that he occasionally helped. The Tribunal asked that that given Vietnam has many unskilled people living and working in Vietnam and because her son was of school age that she had capacity to find work in Vietnam given its labour market. The first applicant feared she had not been in Vietnam for a long time and it would take time to re-acquaint herself with circumstances there.

3. As discussed in the hearing, the country information is clear that there is no country information to accept that the second applicant who be denied accessing a hộ khẩu from the authorities if he were return to Vietnam on the basis of being born overseas to a single mother.  According to the 2013 Background paper about household registration (hộ khẩu) in Vietnam, although single mothers are eligible to register their children for hộ khẩu, many do not because they “mistakenly believe that only children of married parents can be registered”.[38] As noted in the finding above, there is significant barriers in the second applicant’s mother access her own hộ khẩu through re-registration will not be

   [38] United Nations Children’s Fund 2005, Situation Analysis of Institutional and Alternative Care Programmes in Viet Nam, UNAIDS, p. 36 <

4. Furthermore it is well documented that a person’s hộ khẩu, in addition to being a record of their residential status, allows them to claim certain entitlements from the state.  A 2010 report on the United Nations Viet Nam website states that:

   Even now, a hộ khẩu is required for certain administrative procedures, such as to buy land or build a house, register a motor vehicle, borrow money, access subsidized medical care, water and electricity or to participate in the national targeted programs for poverty reduction.[39]

   [39] Marx, V and Fleischer, K 2010, Internal Migration: Opportunities and Challenges for Socio-economic Development in Viet Nam, United Nations Viet Nam website, July, p.17 <

5. Based on the country information above, the Tribunal also notes that returnees who are failed asylum seekers are not targeted by the authoritis for harassment or discrimination or unable to obtain registration according to 2012 DFAT advice.

6. The Tribunal anticipates only minimal difficulties in the second applicant access any household registration or his mother’s registration will not be deliberately targeted against the second applicant and that the process will amount to delays of only a few months when the applicant’s mother engages in a formal administrative process. 

7. There is no suggestion in these claims that the second applicant has a real chance of serious harm or a real risk or significant harm arising from any political opinion or activities undertaken either in Vietnam or Australia by the first applicant.

8. Based on the second applicant’s accepted circumstances and in assessing the available country information, the Tribunal finds the second applicant will not encounter a real chance of serious harm as a failed asylum seeker or because he was born out of wedlock and his mother will return as a single mother or for any other related reasons mentioned in s.5J(1)(a) due to the administrative processes pertaining to Vietnam’s household registration system. Nor does the Tribunal accept that in combination with these reasons and his mother’s accepted economic circumstances (as outlined above), that the second applicant has any real chance of serious harm, including from significant economic hardship, the denial of basic services or the denial of his mother capacity to earn a livelihood of any kind, where the hardship or denial threats the second applicant’s to subsist, if he were to return to anywhere within Vietnam into the reasonably foreseeable future.

100.   Based on the same cumulative consideration of the oral claims raised by the first applicant on behalf of the second applicant, the Tribunal does not accept the second applicant, as a necessary and foreseeable consequence of departing Australia for his country of reference,  has a real risk of any significant harm arising his household registration, his mother’s marital status or economic circumstances or a combination of these factors.

Cumulative findings

101.   The applicants have not made claims that they face a well-founded fear of persecution or a real risk of significant harm based on their religion, nationality or their ethnicity or any other membership of particular social group not addressed in the findings above. The Tribunal is satisfied there are no more residual claims to examine in this review application.

102.   Based on all available information and accepted claims of both of the applicants, both individually and cumulatively considered, the Tribunal is not satisfied that any of the applicants face a real chance of serious harm for any reasons mentioned in s.5J(1)(a), if they were to return to Vietnam, now or into the foreseeable future.

103.   Therefore none of the applicants have a well-founded fear of persecution for any of the nexus reasons mentioned s.5J(1)(a) and do not satisfy s.36(2)(a). 

104.   Based on all available information and accepted claims of the applicants, both individually and cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that the applicants will suffer harm by way of their being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).

Conclusion

105.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

106.   The Tribunal affirms the decision not to grant the applicants protection visas.

Brendan Darcy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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