1703999 (Refugee)

[2017] AATA 2153

1703999 (Refugee) [2017] AATA 2153 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703999

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Nicole Burns

DATE:17 August 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 August 2017 at 1:32pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Vietnam – Imputed political opinion – Failed asylum seeker – Social group – Criminal record in Australia – Health conditions – Mental Health – Drug and Alcohol abuse

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 36(3), (5A), 65, 499, 501(3A)

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

SZSPE v MIBP [2013] FCCA

SZRSN v MIAC [2013] FCA 751

SZTUL v MIBP [2014] FCCA 1985

SZTAL v MIBP [2015] FCCA 64

SZTAL V MIBP (2016) 243 FCR 556

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 [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa [in] January 2017. The delegate refused to grant the visa [in] March 2017.

3. The applicant gave evidence to the Tribunal via video conference from Christmas Island on 29 June 2017.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review.  His representative participated in the hearing by telephone from Darwin. 

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vietnam, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant first arrived in Australia by boat on [date] 1983 on a Class 200 Refugee (Vietnamese K4011) visa and has not departed since. [In] June 2015 his permanent visa (Class BF Transitional (Permanent) visa) was cancelled under s.501(3A) of the Migration Act – mandatory visa cancellation of a person serving sentence of imprisonment.  His application of revocation of the cancellation decision was unsuccessful, in November 2016.

    Country of nationality

13. The delegate records in their decision record (a copy of which the applicant provided to the Tribunal on review) that the applicant provided documentary evidence of his identity, nationality and citizenship, and that they had no concerns about his claimed identity. The delegate accepted he was born in Vietnam and his country of citizenship is Vietnam.  The applicant indicated in the protection visa application form that he was a citizen of Vietnam however stated that he will be classed as a foreigner as he has not returned to the country since his ‘escape’ approximately 33 years ago.  Before the Tribunal the applicant claims he was born in Vietnam, to Vietnamese parents.  However his representative submits that the applicant does not hold Vietnamese nationality according to the current Law on Vietnamese Nationality 2009 because he has never been recorded as a citizen and has never attempted to register as a Vietnamese citizen.  Further, it is submitted, whilst as a person of Vietnamese origin he may be deemed to have been of Vietnamese nationality, he did not attempt to retain Vietnamese nationality within the five year time period required as set out in Article 13(2) of that law.

14. The Tribunal has had regard to the Law on Vietnamese Nationality 2009 and country information about its application in considering whether the applicant is a Vietnamese national for the purposes of assessing his protection claims.  As discussed at hearing, the provisions within that law permit overseas Vietnamese nationals the ability to apply for restoration of Vietnamese nationality and amendments in 2014 to that law removes all time constraints that previously prevented overseas Vietnamese from applying for retention of nationality[1]. At hearing the representative said she was not aware of the 2014 amendments removing the five year time constraint (to register Vietnamese nationality).  Nonetheless, she submitted that the principle still applies: that is the applicant has not sought to register his nationality and he may not want to.  The applicant did not indicate that he would not seek to register his Vietnamese nationality and his oral evidence was in relation to not having household registration (ho khau) in Vietnam following the murder of his mother and sister (discussed in more detail below). 

    [1] Law on Vietnamese Nationality (Vietnam), effective 1 July 2009, art.13, Ministry of Justice (Vietnam) < CX5E56FED19418; Note: ‘Clause 3 of article 26 related to cases failing to register for retention of Vietnamese nationality as prescribed in clause 2 of the old article 13 was annulled’ in the 2014 Amendment of the Law on Vietnamese Nationality 2009:

15. Taking into account these considerations, the Tribunal is satisfied that the applicant is a Vietnamese national.  He claims he was born in Vietnam to Vietnamese parents and there does not appear to be any intervening event by which he lost his nationality (such as acquiring foreign citizenship) if Article 26(3) no longer applies due to the amendments made in 2014. The Tribunal accepts the applicant did not register with the Vietnamese authorities in the period after his mother and sister’s deaths as submitted, but is satisfied on the basis of the above information that that will have no effect on his ability to have his Vietnamese nationality recognised.  Therefore, the Tribunal is satisfied that the applicant remains a Vietnamese national and is required to register with the authorities to retain it and/or access it. 

16. The Tribunal is satisfied the applicant is a Vietnamese national for the purposes of assessing his refugee claims against Vietnam as his country of nationality. 

    Mental health considerations

17. It has been submitted that the applicant suffers from mental health problems, attributable in large part to trauma he experienced as a child witnessing the murder of his mother and sister, and himself being [shot]: triggered recently following riots at the Christmas Island detention centre (in November 2015) in which he refused to participate.  It is submitted that his return to Vietnam would cause him psychological harm for which he could not be appropriately treated and from which he could never recover.  Copies of a selection of medical records[2] from the applicant’s time in immigration detention have been submitted to the Tribunal as well as copies of letters[3] the applicant has written to the Department in respect of his visa cancellation which outline his traumatic experiences in Vietnam and ongoing problems such as nightmares, poor appetite and negative ruminations.  The representative in her written submission also highlighted findings set out in the Minister’s [date] November 2016 decision not to revoke the cancellation decision that being returned to Vietnam could lead to exacerbation of psychological issues arising from the applicant’s early life experiences.

    [2] From International Health and Medical Services (IHMS)

    [3] Dated [May] 2007, [September] 2007 and [June] 2015.

18. In her oral evidence to the Tribunal the representative submitted that the applicant has experienced traumatic flash backs when stressed, following the November 2015 riots on Christmas Island, which is evidence of the mental harm he will be the victim of if returned to Vietnam because he would be living back in the environment where crimes were perpetrated against him and his family.  She submitted that the applicant cannot cope with those thoughts and memories well even in Australia, and seeks counselling regularly.  If returned he would not only suffer the trauma of being back in that environment and the mental harm associated with that, but he would also struggle to get the services he would need to cope with any mental health problems.

19. Although undated, it appears the most recent report about the applicant’s mental health status provided is from [Dr A], clinical psychologist [which] the representative submitted to the Tribunal after the hearing (indicating that she would be doing so at hearing).  In that report [Dr A] states in writing the report she reviewed the applicant’s International Health and Medical Services (IHMS) records (dates ranging from [July] 2015 to  [January] 2017), and letters from the applicant to the Department about his visa cancellation (referenced above).  In reviewing these files [Dr A] states, among other things, that it is clear the applicant has suffered severe trauma in his life and has post-traumatic stress disorder (PTSD) recently diagnosed (2016) with Acute Stress disorder by a psychiatrist; it appears he self-medicated in the past to treat his PTSD with drugs; he continues to suffer many [symptoms], exacerbated by exposure to rioting in detention in 2015.  She opines that it is highly probable forcibly returning the applicant to Vietnam will have a severely detrimental effect on his mental and physical health; his traumatic symptoms will be worsened by the fact he will be unable to access the expert services required to treat his psychological conditions; and it is strongly recommended he not be deported from Australia on mental health grounds.  The Tribunal notes [Dr A] did not actually meet with (or speak to) the applicant and her report is based on IHMS medical records and the applicant’s self-reporting in letters to the Department (some dated 2007).  It therefore gives it little weight in terms of assessing the applicant’s current mental health status. 

20. IHMS record of the applicant’s meeting with a psychiatrist on [date] January 2016 (as referred to in [Dr A]’s report) has been provided.  In that record the psychiatrist’s impression of the applicant is described as “Acute stress reaction on the background of possible PTSD, opiate dependence and alcohol abuse”.  The psychiatrist states that the applicant was threatened with a machete during the (November 2015 Christmas Island) riot because he refused to participate and since then he has been struggling with sleep, among other problems.  It is stated that the applicant never had these experiences in past; that he occasionally has nightmares and flashbacks to his mother and sister being shot; and has no past psychiatric history. [Details deleted].

21. In his statutory declaration[4] provided to the Tribunal the applicant states, among other things, that the terror of Vietnam’s Communist Party is in his head, with constant thoughts of them burying his father alive; he felt guilty for his father’s death (who came to see him not long after he was born); he has ongoing pain and suffering caused by memories of seeing the Communists kill his mother and sister and deliberately shooting and injuring him (trying to kill him); the thought of returning to Vietnam fills him with dread; this pain and dread came alive after the riots on Christmas Island; if sent back he would be destroyed mentally; he is anxious and terrified at the thought of being back in Vietnam under the same Communist regime that has tortured him and scarred him for life; and he could not function in Vietnam because it would be psychological torture just being there, separated from his children, living under that same regime that destroyed his family in Vietnam.  He further states that because of the way the authorities will view him due to his family background, criminal record, and being forced to return, access to medical treatment for his health conditions will be either denied or prohibitively expensive.  He will need counselling for his trauma, but the medical system in Vietnam does not provide much of this kind of treatment.  Also the authorities will see the cause of this trauma as a kind of opposition to them, so they will not recognise this as a health need; therefore mental health services would not be available to him. 

    [4] Dated [June] 2017

22. The Tribunal notes in his statutory declaration the applicant also states that he has worked hard to rehabilitate himself in Australia, stopped his drug addiction, undertaken a lot of training to manage himself and acquire some skills to rebuild his life, and to form good relationships with his children.

23. At the Tribunal hearing the applicant said he has been under a lot of stress since he refused to participate in the riots on Christmas Island in November 2015 and was threatened as a result by fellow detainees.  He said that he has seen counsellors, psychologists and psychiatric nurses in the past and took sleeping tablets for a while but his current mental health was stable and he was not taking any medications.  He saw a counsellor once every week or fortnight.  He has struggled with drug abuse in the past but the courses he undertook in prison helped him a lot in that regard. 

24. Letters[5] of support from the applicant’s daughter and son in Australia have also been submitted, who state they fear for their father’s wellbeing – physically and mentally – given he grew up in Vietnam during the war and members of his family were killed.  They believe he suffers from PTSD and if deported to Vietnam his mental and emotional state will deteriorate, where he will be alone and in danger.  The Tribunal has also had regard to a letter[6] from the applicant’s nephew submitted who states that the applicant has no family in Vietnam and would have a difficult time getting any support there.

    [5] Dated [June] 2015

    [6] Dated  [June] 2016

25. The Tribunal accepts the applicant experienced trauma as a child in Vietnam, including witnessing the murders of his mother and sister and being [shot].  It accepts that he may be suffering from some mental health issues including stress and PTSD, triggered by riots at Christmas Island in late 2015, and possibly stemming from childhood trauma, for which he has been receiving treatment in Australia in the form of counselling.  However based on the applicant’s oral evidence at hearing that he was mentally stable, and was not taking any medications, the January 2016 psychiatrist’s notes which diagnosed him with acute stress disorder following the riot, but noting no past psychiatric history, and no contemporaneous evidence of current significant mental health concerns, the Tribunal is not satisfied that his mental health issues are so severe that they would result in a real chance of serious harm or a real risk of significant harm to him in Vietnam on return.   

26. Further, the Tribunal is satisfied on the evidence before it that the applicant was able to meaningfully participate in the Tribunal hearing because he was able to understand the Tribunal’s questions and respond clearly.     

    Refugee assessment

27. The applicant set out his initial protection claims in his visa application as follows:

    Why did you leave that country?

    I was born on [date]in Vietnam, under the South Vietnamese government, which my family and I supported until Communist rule leading up to 1975.

    I learnt as I grew up that my dad served in the South Vietnamese military and was shot dead by the rebel communist north government  supporters when I was about [age]  old.

    When I was [age] years old, I witnessed my mum and sister also shot dead in front of me, and when I escaped, I was also [shot].  I was captured [a number of] years later and imprisoned for 3 years.

    Upon my release, I fled Vietnam on a boat to [Country 1], and then arrived in Australia on [date] October 1983 as a UNHCR refugee.

    What do you think will happen to you if you return to that country?

    I am constantly fearful for my life as if I return to Vietnam, I could be falsely charged and imprisoned again because of my family’s past support for democracy prior 1975, leading to reprisals and guaranteed death.

    Still today, the Vietnamese authorities cannot be trusted, and apart from the past traumas I have suffered, I will be classed as a foreignor as I have not returned to the country since my escape, approximately 33 years ago.

    Did you experience harm in that country?
    
    

    Yes.  Apart from the traumatic mental harm I faced witnessing the killing of my mum and sister being shot dead in front of me by the rebel communist Vietnamese soldiers, I was also shot and [injured], but escaped and lived.

    Did you seek help within the country after the harm?

    No.  I had to go into hiding and no one could be trusted.

    Did you move, or try to move, to another part of that country to seek safety?
    
    

    No.  Because it was not safe to move anywhere.

    Do you think you will be harmed or mistreated if you return to that country?
    
    

    Yes.  I am constantly fearful for my life as if I return to Vietnam, I could be falsely charged and imprisoned again because of my family’s past.

    Still today, the Vietnamese government is unstable and thus the authorities and event he public cannot be trusted, and I will be seen as a foreignor as I haven’t been back to the country for approximately 33 years now.

    Do you think the authorities of that country can and will protect you if you go back?
    
    

    No.  I am not familiar with current day Vietnamese society and I have lost all contact with family and friends back in Vietnam as I have lived more than half my life in Australia, thus I do not know who to trust or where to go.

    Do you think you would be able to relocate within that country?

    No. I do not know how to trust or where to go, as I left Australia very young and my family hadn’t travelled much around the country because of the instability of the country during my childhood days, this I will not be able to integrate into the Vietnamese society. 

1. On review the applicant expanded upon his claims in a detailed statutory declaration provided to the Tribunal dated [June] 2017.  In it he provides details about his background, his specific protection claims and health (including mental health) concerns.  He claims he will be killed or imprisoned on return to Vietnam for the following reasons:

   ·His father was a high ranking officer of the former regime

   ·The boat he stole used to belong to a Communist government department

   ·He has been living illegally and unregistered in Vietnam for a long time before escaping

   ·He would suffer extreme mental pain if he lived in Vietnam again, reliving the terrible things that happened to him

2. His representative provided a detailed written submission addressing the applicant’s specific claims and providing country information to support her contention that his claims of persecution on return to Vietnam are well founded, as well as case law references, which the Tribunal has taken into account where relevant.

3. The Tribunal notes on 16 March 2017 the applicant sent a hand written letter to the Tribunal via fax dated 14 March 2017 in Vietnamese.  With the aid of a Vietnamese interpreter, a Tribunal officer telephoned the applicant on 6 April 2017 and asked if the letter contained any information he wanted the Member to take into consideration, noting that he needed to translate any submissions in order for them to be taken into account.  The applicant told the Tribunal officer that the letter was addressing the fact that he made an error in his interview (with the delegate) that it looked like he robbed the boat (discussed below).  In his statutory declaration provided to the Tribunal the applicant clarifies that he made a mistake on his protection visa application by stating that he ‘took’ the boat because he meant that he ‘stole’ the boat (to cross the border). 

4. The applicant provided oral evidence to the Tribunal about his background and specific protection claims, summarised as follows.

5. The applicant said he left Vietnam in 1982 by stealing a boat from the Vietnamese government with four other people.  He went to [Country 1] and stayed in a refugee camp for about 15 months before coming to Australia, sponsored by his cousin.  He has [siblings] in Vietnam but lost contact with them a long time ago.  He has [children] in Australia, all adults and all working.  He separated from their mother in 1996. 

6. In Vietnam the applicant said he lived in Nhae Trang town, Khanh Hoa Province, South Vietnam.  He left school in Year [grade] and worked as a [occupation].  He attempted to leave the country in 1979 by trying to steal a boat (with friends) but was caught and arrested by the [police].  He spent three years at [a] re-education camp (he said there was no trial) in Tuy Hoa province: from [date] to [date].  Not long after he was released from re-education camp he managed to steal another boat and escaped Vietnam, as discussed.   

7. The applicant said he left Vietnam because the Communist government had killed his parents and he feared they would do the same to him.  Specifically his father, who was a member of the South Vietnamese army (his mother told him he was ‘high ranking’), was killed in early 1960, when the applicant was [age].  His mother remarried, and had [other] children with his step-father.  His mother and his older sister (from a relationship prior to her marriage with his father) were killed by Communists in their family home when the applicant was [age] (around 1971). He is not sure why but speculated that it was because they wanted to conceal the fact that they had killed his father years before.  The applicant said he witnessed the murder of his mother and elder sister, along with his younger sister at their family home.  He was [shot]: sometime later someone came and took him to the hospital where he stayed for one or two months before returning home to live with his step-father and other siblings.  His step-father treated him poorly and made him look after his younger siblings.  The applicant ran away to an aunt’s house when he was around [age] years old.  His aunt died a long time ago and he has not kept in touch with her children (his cousins). In his statutory declaration provided to the Tribunal the applicant stated, among other things, that he left his aunt’s home after about a year and lived on the streets, not wanting to trouble her and her young children.

8. The applicant said if he returns to Vietnam he is afraid of the Vietnamese government because they killed his family and if they know who he is they will not leave him alone.  Asked why he thinks the current government would be interested in him, noting these events took place a long time ago, the applicant said he is always scared of them, it is a dictatorship government, they never listen, and there is no democracy.  He reiterated that they killed his family and would not leave him alone if they knew about him.

9. The applicant said he is also scared of reprisals from the Vietnamese government on return because he stole a boat which belonged to the government to flee the country in 1982, in addition to fearing harm on return as a failed asylum seeker and on account of his criminal record in Australia (including [details of crimes]).  He would be arrested and placed in gaol for stealing the boat - government property - and would be asked for compensation.  He added that in addition to stealing the boat he assaulted police who were on the boat at the time, and imprisoned them in the hole of the boat so they could not prevent them from leaving. 

   Family links to the former South Vietnamese government

10. The Tribunal has considered the applicant’s claim to fear serious harm from the Vietnamese authorities on return because he and his family supported the South Vietnamese government until the Communist rule (up until 1975) and his father was a member of the South Vietnamese army who was killed in 1960.  He fears ongoing reprisals, believing that his mother and sister were killed in around 1971 by Communists to conceal the murder of his father years before.

11. In her written submission to the Tribunal the representative argues that the delegate relies upon erroneous, irrelevant and selective country information to form the view the applicant will not be imputed with an anti-government political opinion due to his family background, and highlights specific concerns.  She submitted that research dated 2012 found that women in academic leadership positions in Vietnam suffer discrimination for a range of reasons, including because of a ‘bad family history’ of links to the former regime[7].   She also submitted the delegate’s citation of an email (dated 10 July 2006) from anthropologist Dr Ashley Carruthers (who states he is not aware of reports on current treatment of people linked to the former regime, and opines there is no longer systemic discrimination against them), omits part of the email, which the representative reproduces in her submission.  She submits that according to Dr Carruthers, someone like the applicant would suffer ongoing social consequences of past discrimination and downward social mobility due to his family background. 

    [7] Ngoc Lan Thi Dang, Vietnamese Women in Academic Leadership: Experiences of Mid-Level Women Leaders in Universities and Colleges in the Mekong Delta, A Dissertation submitted to Michigan State University, 2012, p 81.

12. In his statutory declaration provided to the Tribunal the applicant stated that his whole life has been marred because his father fought with the Republic of Vietnam Army against the Communists; they killed his father by burying him alive (the thought of which is torturous to him); and they also killed his mother and sister and shot him [when] he was young at their home – targeted because of his family’s links to the Republic of Vietnam Army, because of his father.

13. The Tribunal accepts the applicant’s father was a member of the South Vietnamese army in the past and was killed by members of the then rebel communists in 1960.  Although the applicant’s claim that they buried his father alive is inconsistent to his claim in the protection visa application that his father was shot, the Tribunal is willing to accept his application was made hurriedly and with little assistance as submitted and accepts his father may have been buried alive as claimed before the Tribunal.  The applicant claimed at hearing (and in his statutory declaration to the Tribunal) his mother told him his father was ‘high ranking’ although was not able to provide any further details.  He made no mention of this fact in his protection visa application and given his vague oral evidence the Tribunal does not accept his father was ‘high ranking’ as claimed.

14. The Tribunal has considered country information about the treatment of supporters of former South Vietnamese army/government (and their families) in Vietnam.  As discussed at hearing, whilst there are some reports of discrimination in certain cases against supporters of the old regime (and benefits to those who supported the Communists), there is no indication that supporters or their families have experienced discrimination that amounts to the level of serious or significant harm[8] as defined in the Act.  The Tribunal notes that DFAT make no mention of people who worked for the south Vietnamese government during the war (or their family members) experiencing problems for that reason on return in their most recent country information report on Vietnam.  Instead, DFAT indicates that those at high risk of attracting the adverse attention of the Vietnamese authorities are political and human rights activists who openly criticise the government, the communist party, and its policies[9].   This analysis is reflected in the latest report from the UK Home Office on Vietnam: Political opponents, who identify those at risk of arbitrary arrest and detention on account of their political opinion in Vietnam as “those who criticise the government or who use the internet to publish ideas on government policies, political pluralism and human rights or who otherwise express views which are seen as posing a threat to the government or Communist Party of Vietnam (CPV)...”[10] 

    [8]  See for example, Vietnam Human Rights Network, Report on Human Rights in Vietnam 2016 – 2017 pp59- 61

    [9] DFAT Country Information Report Vietnam 21 June 2017 at 3.25

    [10] UK Home Office, Country Policy and Information Note, Vietnam: Political opponents, Version 2.0, November 2016 at 3.1.1,

15. The Tribunal has also had regard to the most recent report from the United States Department of State’s country report on human rights practices in Vietnam that political and religious activists and their families alleged numerous and sometimes severe harassment by public security officials and agents, there is no indication that supporters of the old regime/former South Vietnamese government soldiers and their families are targeted.[11] 

    [11] United States Department of State, Country Reports on Human Rights Practices for 2016, Vietnam, published March 2017,

16. When this information was discussed at hearing the applicant said such reports are on paper only - in theory- but in reality it is different.  His serious fear is the fact that his family was related to the old regime.  The authorities might leave him alone if he returns but after a few months they will not: he might be abducted at night which has happened all the time with many people.

17. Whilst the Tribunal accepts the applicant’s father was a member of the South Vietnamese army and was killed by the communists, this occurred 57 years ago and country information does not indicate that the applicant, as his son, would be of ongoing adverse interest to the current Vietnamese authorities for this reason. 

18. The applicant argued that he fears ongoing reprisals by the authorities, believing that his mother and sister were killed in around 1971 by Communists to conceal the murder of his father over 10 years before.  Following their murder the applicant said he did not register his name on the household registration booklet, fearful that the authorities would find him.  The Tribunal accepts he did not register his name after their deaths.  The Tribunal accepts the applicant’s mother and sister were murdered when he was around [age] that he witnessed the murders and he was [shot].  It is unclear what the specific motivation was behind the murders and the Tribunal finds the applicant’s contention that the Communist party wanted to conceal the murder of their father almost a decade before somewhat far-fetched and largely speculative.  In terms of his fears of ongoing reprisals, the Tribunal notes the applicant remained living in Vietnam after his mother and sister were murdered in 1971 for over a decade and nothing further happened to him: initially staying at the same house and then with an aunt.  

19. The Tribunal accepts that the applicant was arrested and detained in a re-education camp for three years from [date] to [date].  However on his own evidence this was because he was caught trying to steal a boat to leave the country, not because of his father’s involvement with the South Vietnamese army or any family links to the South Vietnamese army or government.  Furthermore, he was released after three years which does not indicate that the authorities had an ongoing adverse interest in the applicant in relation to his father, other family members, or for any other reason at that time. 

20. In the application form the applicant said he did not seek help after his mother was killed and sister in front of him (and he was [shot]) because he had to go into hiding because no one could be trusted.  However at hearing he said he moved back to his house (after being treated in hospital), lived with his step-father and helped look after his younger siblings, before running away and living with his aunt.  As mentioned, he stated in his statutory declaration provided to the Tribunal that he only lived with his aunt for a year before living on the streets, not wanting to cause problems for her and her children.  He told the Tribunal that he left school at year [grade] and worked as a [occupation].  His evidence in these respects does not indicate that he was in hiding from the authorities during these periods. 

21. For these reasons the Tribunal finds remote the chance the applicant would be seriously harmed by the Vietnamese authorities, imputed with an anti-government political opinion on return to Vietnam, because of his father (and his family’s) involvement with the former south Vietnamese army, his family’s broad support to the former south Vietnamese government and/or in relation to the killing of his father in 1960 and his mother and sister in around 1971. It accepts he was sent to a re-education camp in [date] for three years for stealing a boat and trying to depart the country, but was released with no indication that he was of further adverse interest to the authorities at the time.  The Tribunal finds the applicant’s fear of persecution on imputed political opinion grounds and as a member of a particular social group of refugees linked to the former regime in Vietnam (as submitted) for these reasons is not well founded.

    Theft of government boat and assault of police officers

22. The Tribunal has considered the applicant’s claims to fear being arrested and possibly harmed on return to Vietnam by the authorities because he stole a government-owned boat and assaulted some police officers on board that boat in 1982, during his escape from Vietnam. 

23. The Tribunal has some concerns about the applicant’s claims in this respect because he made no mention of stealing a boat and assaulting police officers during his escape from Vietnam in his protection visa application.  He claimed he told the delegate at interview that he stole the boat, and has explained that he failed to mention this fact beforehand because the person who prepared his application form forgot and he had little time and support in the detention centre to prepare his application.  The Tribunal is willing to give the applicant the benefit of the doubt in this regard and accepts his claims that he stole a government boat to escape Vietnam in 1982 (along with four others).  However it does not accept he assaulted police officers during his escape because he failed to mention this claim in his initial protection visa application, and in his statutory declaration provided to the Tribunal, and the Tribunal found his oral evidence about the assault vague and somewhat implausible. 

24. As mentioned, the Tribunal accepts the applicant was sent to a re-education camp for three years in [date] for a similar crime: that is attempting to steal a boat and depart the country.  However that was 35 years ago and whilst the Tribunal accepts the applicant may be questioned and fined given his illegal departure from the country, for reasons set out below it does not find that he faces a real chance of serious harm on return to Vietnam on this basis.

25. In considering what might happen to the applicant on return to Vietnam given he stole a government boat in 1982 and managed to escape the country, the Tribunal doubts the authorities would be aware that he stole the boat, 35 years later.  The applicant said even though the government cannot remember who he was or the crime in 1982, one can imagine if he is deported back to his country and returns to his home town, there would be many rumours about him which would spread, reach the authorities and they would have to investigate and would find out about such matters, even those that occurred a long time ago but are not resolved.  He said they would then arrest him, put him in gaol and ask him for compensation.  Even if the authorities came to know he stole a government boat – noting this information contained in the delegate’s decision record was part of documents inadvertently released by the Tribunal to an unknown email address (the ‘privacy breach’, addressed below) – the Tribunal notes that the theft took place 35 years ago when a large number of Vietnamese were fleeing the country and the Tribunal finds remote the chance the applicant would be arrested and charged for this matter.  Even if he was, as discussed at hearing, he would be charged for a criminal matter under a law of general application.  The applicant said because of his family history it would not be considered just stealing.  He also assaulted a police man.  The representative argued whilst a law of general application, it still does not absolve the fact that stealing the boat in 1982 was in connection with fleeing Vietnam and seeking asylum.  

26. The Tribunal has considered these submissions and concerns.  However given the passage of time and the fact the Tribunal finds the applicant does not face a real chance of serious harm by the authorities on return to Vietnam because of his family links to the former South Vietnamese army or government or as a failed asylum seeker who departed the country illegally on return (for reasons set out above and below) the Tribunal finds remote the chance the applicant would be arrested, jailed and possibly harmed on return by the authorities because he stole a government boat 35 years ago.  His fear of persecution on this basis is not well founded. 

    Criminal convictions in Australia

27. The Tribunal has considered the implications of the applicant returning to Vietnam with a criminal record in Australia.

28. It is submitted that [in] 2004 the applicant was sentenced to 16 years imprisonment [and] released on parole and taken into immigration detention [in] June 2015[12].  The applicant confirmed at hearing he was sentenced and served [a number of] years imprisonment before being released on [parole].  He said his parole finishes [in] 2018. He acknowledged a criminal history dating back to 1984 in Australia for a variety of [charges] and noted he had been to prison a few times before the last time. 

    [12][Source deleted].

1. It is submitted that Australia must disclose information about his criminal record to the Vietnamese authorities on his return due to his visa cancellation.  The representative has submitted that if the applicant returns to Vietnam, the Vietnamese authorities will not view his criminal record in Australia in the context of rehabilitation, but in the context of the prevalent approach to drug-related criminal activity in Vietnam and within the Vietnamese Ministry of Justice (MoJ) legal framework: that is extremely unfavourably to the applicant.

2. In his statutory declaration to the Tribunal the applicant stated that he fears being discriminated against in Vietnam due to his criminal record.  He knows the Communist regime will hold his criminal past against him and will make trouble for him – maybe not straight way, but they will not let him live in peace.  He stated that the Vietnamese authorities will not want him back because of his criminal history; if they do accept him on return once there they will look for ways to destroy him and not allow him to settle in to life; they will monitor him; find ways to blame him for crimes he did not commit; and he is sure he will be imprisoned and harmed in prison (and will die a horrible death there). 

3. In relation to whether the applicant faces a risk of being of adverse interest to the authorities and possibly examined for penal liability for any of the crimes he committed in Australia in Vietnam, the Tribunal notes DFAT in their most recent report on Vietnam relevantly state:

   According to the MoJ, the principle of double jeopardy applies in Vietnam.  Persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.  Article 6 of the Penal Code provides that people who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’.  MoJ stated that there is no specific lists of offences; however, if the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they could be ‘examined’ for penal liability on return to Vietnam[13].

   [13] DFAT Country Information Report Vietnam 21 June 2017 at 4.7

4. When this information was discussed at hearing the applicant said although in theory the principle of double jeopardy applies in Vietnam, in reality the MoJ could apply the Penal Code as they wish: the authorities do so even for events that do not involve crimes, for example against Catholics who want to practice their religion.  He has had a lot of difficulties in Vietnam (let alone his criminal matters in Australia) and it could be an opportunity for the authorities to take vengeance against him, especially because he assaulted the police (in 1982).  

5. The representative has submitted that, whilst unclear what it means when a person has ‘not served their sentence’ under Vietnamese law, because the applicant’s end sentence date is [in] August 2018, the Vietnamese MoJ may form the view that the applicant did not complete his 16 year sentence: it is therefore likely he will be examined for ‘penal liability’ under Vietnamese law (citing an excerpt from the DFAT report, set out above).  She submits further that the applicant’s criminal record in Australia should be considered in the context of the approach to Vietnam to certain crimes.  For example conviction for possession of even small amounts of narcotics carries the death penalty, and it is reported that in 2006 most executions were for drug-related crimes.  She submits that the applicant’s sentencing [in] 2001 included a conviction for unlawful possession of [a drug] that was characterised by the judge as having an element of ‘commerciality’ and arguably the Vietnamese authorities could charge the applicant for conduct relating to international drug supply that involves activity in connection with Vietnam, which could be a separate charge to that Australian conviction and as such, falls outside the double jeopardy principle.   Added to this, it is submitted, is a real risk the applicant may be detained in Vietnam while being ‘examined for penal liability in Vietnam’ and could suffer the fate of at least 2,812 others who died in custody between 1 July 2011 and 30 June 2016 (as set out on in the DFAT 2017 report[14], a copy of which the representative submitted to the Tribunal).

   [14] At 4.3

6. The Tribunal has considered the submissions and concerns articulated about what might happen to the applicant on return to Vietnam with a criminal history in Australia, including for drug related offences.  It accepts the applicant has a criminal history in Australia and it is likely the Vietnamese authorities will be aware of this fact on his return.  However, as discussed at hearing, DFAT advises that the principle of double jeopardy does apply in Vietnam, which means he cannot be tried for the same crimes he committed in Australia. Therefore he cannot be tried for any of the crimes to which he has served his sentence in Australia, including (historical) drug related crimes.  The representative’s submission that the sentencing judge in 2001 commented that the applicant’s possession of [a drug] had an element of ‘commerciality’ could lead to the applicant being charged by the Vietnamese authorities charged for conduct relating to international drug supply that involves activity in connection with Vietnam is largely speculative and not supported by evidence in the applicant’s case of having been charged in Australia for trafficking [drugs] for example. 

7. The Tribunal has considered the submission that the applicant is at risk of being examined for penal liability under Vietnamese law on return because he has not yet served his sentence in relation to his most recent offences.  The Tribunal accepts the applicant’s evidence that he is currently on parole, serving the remainder of his 16 year sentence in the detention centre instead of prison, due to expire [in] August 2018 (according to the representative however the Tribunal notes the applicant stated his end sentence date is [date]  August 2018).  However, noting that the applicant has served most of his sentence (and all of the non-parole period as set by the sentencing judge) and DFAT’s advice that a person who have committed offences overseas ‘where the sentence has not been served, may be ‘examined for penal liability in Vietnam’ and ‘if the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they could be ‘examined’ for penal liability on return to Vietnam’ [Tribunal emphasis], the Tribunal finds remote the chance the applicant would be examined for penal liability in Vietnam in relation to his offences in Australia and face serious harm by the Vietnamese authorities as a result. 

8. The Tribunal has also considered country information about the treatment of returnees to Vietnam who have been convicted for offenses overseas.  As discussed with the applicant at the hearing, when asked whether DFAT were ‘aware of any other problems that a returnee who has been convicted and served time for a serious crime overseas, particularly drug offences, may face upon return to Vietnam’, DFAT replied ‘Post is not aware of any such problems’.  DFAT also advised that ‘No punitive action may be taken against a person who has been deported for committing a serious criminal offence overseas’[15].  The representative submitted that the fact that DFAT is not aware of any such problems is not evidence (and therefore irrelevant to the applicant’s claims).  Further, she submits that the DFAT advice is based primarily on information provided by the Vietnamese MoJ, which is partial information. 

   [15] VNM 12377 Return of a Vietnamese National with Criminal Conviction, Department of Foreign Affairs and Trade (DFAT), 15 September 2011, CX272689

9. On the basis of this country information the Tribunal finds remote the chance the applicant would face serious or significant harm from the authorities on return to Vietnam because he had been convicted of a drug-related or other crime in Australia. 

10. For these reasons the Tribunal does not find the applicant faces a real chance of serious harm from the Vietnamese authorities on return to Vietnam because of his criminal record in Australia. 

11. Furthermore, country information (as set out below with respect to household registration), as discussed with the applicant at hearing, indicates that nothing in the residency law makes registration more difficult for individuals who have acquired a criminal record overseas.  On this basis the Tribunal is satisfied his criminal record will not hamper his efforts to obtain registration and access basic services on return.  

    Inability to subsist

12. In his statutory declaration provided to the Tribunal the applicant states that he has no experiences or links in Vietnam that he would need to find work and somewhere to live; his education in Vietnam was not good because of the traumatic life he had during the war; and he does not have the skills to survive in Vietnam.  Furthermore, he will not be welcome there: the authorities will look at him in a bad light because of his bad family history, his criminal record, his health needs and the fact he has been rejected by Australia.  The authorities will therefore deliberately make his life difficult by not giving him documentation, or making it very difficult to get documentation needed to live a normal life, for example registration papers, licenses and authorisations from local authorities to work.

13. The representative submitted that if the applicant is not detained on return to Vietnam, he will likely be deprived of medical care, employment and official documents: an effective denial of citizenship rights that could make him unable to subsist and live a normal life.  In her written submission to the Tribunal she refers to the delegate’s findings that the applicant was arrested; [sentenced] to a re-education camp; has no formal education; lost contact with all close family remaining in Vietnam; is not familiar with current day Vietnamese society and calls Australia home; still suffers from his past and requires ongoing treatment from counsellors and psychologists; has [ another medical condition] for which he has been treated; will have difficulty settling into new life in Vietnam having lived most of his adult life in Australia where he has a family and support networks; and will face challenges in establishing himself in Vietnam.  

14. It is further submitted that the applicant and his immediate family members were subject to extreme violence in Vietnam and due to his political affiliation, his father was buried alive: these considerations are critically important in assessing the applicant’s protection claims because, it is argued, the applicant will not be able to function or subsist on return as a result. 

15. The Tribunal accepts the applicant has no family or friends in Vietnam, he is not familiar with Vietnamese society, he has some mental health problems from past trauma, he has [another medical condition], and his studies and work experience has been intermittent. He has also spent many years in institutions (prison and detention) in Australia and has struggled with drug addiction in the past. It accepts that given these considerations, combined with the fact that he has not returned to his home country for around 35 years and his family members are all in Australia, it will be difficult for him to adjust to life in Vietnam. It also accepts that he experienced traumatic events in his childhood as described, which have impacted on him adversely psychologically. However, these considerations considered separately and cumulatively do not, in the Tribunal’s view, result in the applicant facing a real chance of persecution for a refugee reason as defined in s.5J(1)(a). As well, in terms of whether the applicant would face discrimination from the community at large because of his history as a drug user and criminal history, the Tribunal doubts whether they would even come to know these facts. If they do, the Tribunal accepts that the applicant may face a degree of ostracism and discrimination in Vietnam on this basis, however is not satisfied that it would arise to the level of serious or significant harm as defined in the Act.

16. The Tribunal accepts the applicant has [a certain medical condition] for which he has received treatment and  some mental health issues for which he has received counselling, as discussed above, but he is currently not taking any medications and indicated that his mental health was stable.  It also accepts the submission that he has continuing pain in his [body].  It accepts the applicant may not be able to access the same standard of health care services in Vietnam as he would in Australia, as is the case for other nationals of Vietnam but it is not satisfied on the evidence before it that he would be denied medical services or health care for a refugee (or any other) reason by anyone.  For the reasons above, whilst the Tribunal accepts the applicant’s claims about his family’s links to the former south Vietnamese government, it finds remote the chance the authorities would continue to try and punish him for his family’s links to the South Vietnamese army decades ago.  The Tribunal accepts the applicant may need some financial help initially when he first arrives in Vietnam.  In this regard the Tribunal notes his oral (and written) evidence that he has the support of his family members in Australia, including  [adult] children who work, who would be able to help him settle in to life in Vietnam, including obtaining counselling or treatment for his [medical conditions] or other medical or material assistance if required.  The letters of support from the applicant’s son, daughter and nephew provided to the Tribunal clearly indicate their commitment to support the applicant in the future.   Although written in support of his release on parole and to challenge the cancellation decision, the Tribunal doubts they would withdraw their support if he returns to Vietnam.

17. The Tribunal also notes on the applicant’s own oral evidence he has had some education – completing Year [grade] in Vietnam – and some work experience in Vietnam (as a [occupation]) and in Australia [in a variety of roles].  He has also worked in prison and obtained skills and qualifications in [an] industry, for example.   The representative submits that it will be difficult for the applicant to explain his work history (and gaps) undertaken in prison or as a result of prison in Vietnam and the impact of his ongoing health issues - such as continuing pain in his [body] and mental health issues as discussed, needs to be considered. Although the Tribunal accepts it may be difficult for the applicant to obtain employment on return to Vietnam, given these considerations the Tribunal considers the applicant would be able to find work eventually and is not satisfied on the evidence before it that he would be denied the opportunity to work, by the authorities or anyone else for example by making it too difficult for him to obtain necessary paperwork, or because of his personal history (in addition to the problems with household registration) as claimed.

18. The Tribunal also notes the applicant speaks Vietnamese.  His representative submits that due to interrupted schooling because of his father’s affiliation with the army of the Republic of Vietnam and growing up during the war he does not read or write in Vietnamese.  The Tribunal is willing to accept that is the case but does not consider that will prevent him from obtaining work in areas which he has experience as set out above. 

19. The Tribunal is also of the view that the applicant would be able to obtain household registration on return to Vietnam, even if only after some time, and therefore be able to access basic services.  The representative disputes this, arguing that it is not possible for the applicant to have his household registration reinstated and in turn access government services because he does not have Vietnamese nationality according to the current Law on Vietnamese Nationality.  Even if he was able to obtain it, she argues that his household registration and the access to government services will not be immediate and may not eventuate at all, noting a report by the World Bank Group in 2016[16] about Vietnam’s household registration system that indicates (she submitted) the applicant would wait two years at least for permanent residence status in big cities, or three years in Hanoi, or more in other locations.  She submitted further that the report indicates the applicant would most likely not be granted permanent household registration because it has become more restrictive over time.  She states as well that people without it face discrimination in public sector employment, earn less money if employed, face barriers to social health and insurance and pay higher fees for health care, would not be able to do simple things like register a motor vehicle without returning to place of origin, will be less likely to become involved in local organisation, will be subject to higher electricity costs, will have constant travel costs to get documents from permanent residence location, and will likely appear on the ‘poor list’ however in practice many miss out on benefits, subsidies and services associated with the list. 

    [16] World Bank Group & Vietnam Academy of Social Sciences, ‘Vietnam’s Household Registration System’, June 2016,

20. At hearing the representative notes the report by the World Bank Group (2016) referenced in her written submission, which includes, among other things, a history of the ho khau in Vietnam.  She submitted that she thinks at the time the applicant was born he would not have been registered under the system and is not sure if so later and therefore it cannot be assumed it is a simple matter of him re-establishing it.

21. The Tribunal has considered these submissions (and the country information contained within them) and the representative’s concern that the applicant would be unable to obtain household registration on return to Vietnam, or if so, not for many years.   With respect to her submission that he would not be able to obtain household registration because he does not have Vietnamese nationality, for reasons above the Tribunal has found the applicant would be able to apply for Vietnamese nationality on return to Vietnam and does not consider this to be a barrier to him obtaining household registration. 

22. As discussed at hearing, in Vietnam, legislation on hộ khẩu (‘household member’) registration is covered by the Law on Residence (No.81/2006/QH11) which was amended by Law No. 36/2013/QH13, Decree No.31/2014/ND-CP, and by the Ministry of Public Security’s Circular No. 35/2014/TT-BCA.[17]

    [17]‘Law on Residence (Vietnam), No.81/2006/QH11’, Viet Nam Ministry of Justice, Date of effect 2 July 2007, CIS29667;‘Indochina Law Quarterly. December 2015 & March 2015’, Baker &McKenzie, March 2015, Vol.23, No.2,  CISEC96CF15205; ‘Circular No. 35/2014/TT-BCA’, Ministry of Public Security (Vietnam), Date of effect 28 October 2014, CISA447F083191; ‘Vietnam’s Household Registration System’, World Bank Group & Vietnam Academy of Social Sciences, June 2016, CIS38A80121252, p.3; ‘Law No. 36/2013/QH13’, Socialist Republic of Viet Nam. The National Assembly, Date of effect 1 January 2014 CIS36DE0BB2201;

23. On 5 August 2013, Vietnam’s Ministry of Public Security provided the Department of Foreign Affairs with information regarding Vietnamese nationals returning from abroad and the process of obtaining household registration as follows:

    ...

    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.[18]

    [18]‘Vietnam: VNM42545 – Household Registration – Returnees – Criminal Records’, Country of Origin Information Section (COIS), 5 August 2015, CRAD81550530, Question 1

1. Further, country information indicates that Vietnamese nationals who have been abroad longer than 6 months, upon return shall have their names revoked from their household register.[19] It is reported that returning Vietnamese nationals ‘must re-apply for registration’ and ‘in order to regain hộ khẩu’ (household registration) they ‘must produce’ the correct documentation, as follows:

   Persons absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reason shall have their names crossed out from the household registration book. When they return they must re-apply for registration. In order to regain Ho Khau, returning Vietnamese expatriates must produce one of the following documents:

   • 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 rule

   • Authority, accompanied by proof of the permission to return for permanent residence issued by the related authority[20]

   [19]National Offender Management Service and Praxis Community Projects, 2017, Returning to Vietnam,  CISEDB50AD157, pp.2-3

   [20] Op cit

2. In the June 2016 report Vietnam’s Household Registration System, the World Bank Group and Vietnam Academy of Social Sciences stated that two categories of household registration (hộ khẩu) exist, ‘temporary and permanent’. The report indicates that temporary residence household registration is necessary for acquiring permanent residency in certain domiciles:

   To register as a permanent resident, one must live in the city for one year (when migrating into suburban district) and two years (when migrating into urban district) of a municipalities of Vietnam based on temporary residential booklet record.[21] 

   [21]‘Vietnam’s Household Registration System’, World Bank Group & Vietnam Academy of Social Sciences, June 2016, CIS38A80121252, p.3

3. The same report states that in respect to temporary residence registration:

   Ho Khau Qualita­tive Study (HKQS)[22] found that acquiring the process for obtaining temporary res­idence status is no longer difficult, and consequently the population of people with no registration status at all is thus very small.[23]

   [22] Ibid, pp.8-9

   [23] Ibid,p.11

4. In its June 2016 report Vietnam’s Household Registration System, the World Bank Group and Vietnam Academy of Social Sciences state that the 2006 Law on Residence’:

   ...significantly reduced the conditions for obtaining permanent residency, particularly in central-administered cities.  In order to get a ho khau registration in these cities, previously citizens had been required to reside there continuously for three years, while the new regulation only required one year of continuous residence.  Other changes under the 2006 Law simplified the transfer of registra­tion status.  Crucially, the requirement of obtaining a moving certificate from the place of departure was removed.  Requirements to demonstrate employment or school enrolment in the destination were also eliminated.’[24]

   [24] Ibid,p.5

5. The country information referred to above indicates that once a person returns from outside Vietnam, finds a household and provides evidence of Vietnamese citizenship, then the process for registration is reasonably straightforward.  The Tribunal is satisfied that the applicant will be able to obtain household registration on return to Vietnam. Through his household registration (ho khau), the applicant will be eligible for basic social services, including education, poverty assistance and health care, as well as access to subsidised medical care and national targeted programs for poverty reduction.  The Tribunal does not accept that the applicant would be denied or unable to obtain household registration.

6. It is submitted that it could take years for the applicant to obtain household registration and without money and support it will be difficult for the applicant to live and find work on return to Vietnam.  County information set out above from the World Bank group indicates the applicant may be required to show continuous residence for a year to be eligible for permanent residency.  However the Tribunal notes that the applicant’s adult children in Australia have indicated their willingness to support their father post release from prison/immigration detention and at hearing the applicant said he has the support of his adult children in Australia, all of whom work and earn an income.  On this basis the Tribunal is satisfied that his adult children and/or nephew in Australia would be willing and able to provide the applicant with the necessary financially support to help him settle in to Vietnam on return, at least initially in order to secure a place to live and obtain a ho khau.  

7. At hearing the applicant said when he lived with his aunt after his mother and sister was murdered, his aunt did not include him in the household register due to fear of the authorities.  The Tribunal accepts his claims in this respect however the country information as set out above does not indicate that he has to produce an original household registration book and indicates that an individual can be removed from their household registration if not residing there for more than six months, which is what has occurred in the applicant’s case. 

8. For reasons above the Tribunal has found that the applicant would be able to obtain household registration on return to Vietnam and therefore would be able to access basic services.  The Tribunal is also satisfied that he would be financially supported if required at least initially on return by his adult children and possibly nephew in Australia.  Furthermore, the Tribunal does not agree that the applicant, who has obtained a number of qualifications and has had some work experience in Australia and Vietnam, would be unable to get a job on return to Vietnam, even accepting that it may be difficult initially.   For these reasons the Tribunal does not accept that the applicant would be destitute and/or unable to subsist on return to Vietnam.

   Failed asylum seeker and the ‘privacy breach’

9. It is submitted the applicant faces serious harm from the Vietnamese authorities on return to Vietnam on imputed (anti-government) political opinion grounds as a failed asylum seeker.

10. At hearing the applicant said he would be scared of returning as a failed asylum seeker, given his application to be recognised as a refugee was not approved, in addition to his fears related to his criminal record in [Australia] and because he stole government property when he left in 1982, which is a very serious crime. 

11. The Tribunal notes that in May (2017) a Tribunal officer inadvertently sent documents containing the applicant’s personal information to an incorrect email [address].  The documents included a copy of the Tribunal file containing the delegate’s decision record which sets out the applicant’s protection claims, among other matters.  The representative submitted that in light of this privacy breach wherein the Tribunal released documents (including a copy of the decision record) to an unknown party the applicant’s  personal identifying information and his protection claims have been released to an unknown person.  She submitted that due to the ease with which information can be stored and disseminated electronically, once it has been released, it is impossible to know the extent of the privacy breach in terms of who may have access to the applicant’s information.  This privacy breach therefore raises a sur place claim given the risk that this information may be received by persons linked to parties in Vietnam which may result in the applicant being persecuted on account of this information on return to Vietnam. 

12. At hearing the applicant said he became concerned after he heard about the Tribunal’s privacy breach because he does not know what could happen to him in the future, especially when the information falls into the hands of people who could harm him.

13. Whilst accepting the Tribunal erred in sending the applicant’s personal information to an incorrect email address (instead of his representative’s email address) [in] May 2017, it doubts the information would find its way to the Vietnamese authorities as submitted.  Nonetheless, even if the information was passed on to the Vietnamese authorities, and for this and other reasons advanced they became  aware that the applicant had sought asylum in Australia, for reasons that follow including country information about the treatment of returnees and failed asylum seekers to Vietnam, the Tribunal finds the applicant does not face a real chance of serious harm on return as a failed asylum seeker (including with criminal convictions).

14. As discussed at hearing, with respect to the treatment of returnees, DFAT in their most recent country information report on Vietnam (21 June 2017) state as follows:

    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’.[25]

    [25] DFAT Country Information Report Vietnam, 21 June 2017 at 5.15

15. Furthermore DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Vietnamese government[26].

    [26] Ibid at 5.21

16. When this country information was discussed with the applicant at hearing, he said his situation is different because he stole a boat and assaulted police. The representative submitted that the applicant would not be returning under the same provisions as outlined by DFAT in their reports because he did not use a people smuggler, but organised his own trip after assaulting police: therefore he would not just be treated as a failed asylum seeker who departed the country illegally. For reasons above the Tribunal does not accept the applicant  assaulted any police when leaving Vietnam.  It accepts he stole a government boat but finds remote the chance that he would face serious harm from the authorities on return on that basis, 35 years later.

17. In her oral submission to the Tribunal the representative said in 2016 some people from Vietnam were intercepted at sea on their way to Australia from Vietnam and returned to Vietnam on the understanding by the Australian authorities (from the Vietnamese authorities) that they would not be harmed: however some were.  Specifically they were charged for being organisers and convicted and the parents’ in question were jailed.  Some of the mothers involved were released from prison and fled again with their children, reached Indonesia and were found to be refugees by UNHCR – a clear case, it is submitted, of people who have been harmed on return, fled again, and found to be refugees.  The fathers who have remained in prison have been severely harmed or are under police watch in the community and separated from their families.  The representative provided to the Tribunal a statement from Mr Trung Doan, Former Federal President of Vietnamese Community in Australia dated 28 September 2016 who claims to have spoken to people from two boats of Vietnamese asylum seekers, who returned to Vietnam (July 2015 and April 2015) after their return (on assurance from Australian government officials that they would not suffer retribution for their illegal departure from Vietnam.)  Mr Trung Doan stated, among other things, that he was told that as soon as the Australian officials left the scene the returnees were taken back to their home province where each person underwent a brief questioning session; a short time later one of the women he spoke to (Lua) and two men were detained for being the people who started the idea of escape; Loan Tran – a fellow boat person and wife of one of the two men – was similarly accused but not detained; both men were beaten on their legs and have become paralysed; Lua was also physically beaten, taken to hospital then released on remand; in her local area the authorities ran announcements (through loudspeakers) giving the names of Lua and her three children stating that they had tried to flee Vietnam and were traitors; later a court found that Lau and the others were guilty as charged; and Loan and her children’s names were also publicly announced, which affected her children’s desire to go to school (for at least several days).  An excerpt from Australia’s Senate Hansard on 25 May 2015 is attached to the statement, setting out questioning of a senator to a Major-General, the latter who indicates they were given assurance by the Vietnamese authorities that there would not be any retribution for their illegal departure from Vietnam. 

18. The Tribunal has had regard to the representative’s submission and the statement of Mr Trung Doan about mistreatment of returnees to Vietnam of those who departed the country unlawfully as recently as 2015 and 2016.  However, both indicate that they were charged as organisers or instigators of the trips, and DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations.  DFAT also state that ‘they understand this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.’[27]  The Tribunal accepts the applicant did not pay money to a people smuggler to flee Vietnam in 1982, but instead fled himself by stealing a boat, along with four others.  However the Tribunal does not accept that he would be considered a people-smuggler given the circumstances of his departure 35 years ago and finds remote the chance that he would be charged, arrested and detained by the authorities and possibly face serious harm as a result on return to Vietnam. 

    [27] DFAT Country Information Report Vietnam 21 June 2017 at 5.17

19. The Tribunal has considered the applicant’s concerns about returning as a failed asylum seeker who departed illegally and the representative’s submissions on this issue.  However given the Tribunal has not accepted the applicant’s claims to have been of ongoing adverse attention to the authorities in the past, combined with country information above that does not indicate that failed asylum seekers face problems or different treatment from the government on return, the Tribunal finds the applicant does not face a real chance of persecution on return to Vietnam as a failed asylum seeker on imputed or actual political opinion grounds or any other ground such as membership of a particular social group of failed asylum seekers, even taking into account his criminal record in Australia, among other matters.

    Illegal departure

20. As discussed at hearing, having departed Vietnam by boat in 1982 without a passport, the Tribunal accepts the applicant departed the country illegally and as a result may be subject to a fine on return.  DFAT relevantly state on this matter:

    Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND 2 million and VND 10 million (approximately AUD$120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND 20 million and VND 50 million (AUD$1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.

    DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally. While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations.  DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016[28].

    [28] Ibid at 5.16 and 5.17

21. Furthermore, as discussed at hearing, the provisions of the decree that deal with irregular departure are not expressed in discriminatory terms and can be considered laws of general application. 

22. At hearing the representative submitted that the applicant would not be returning under the same sort of provision as set out by DFAT with respect to receiving a fine only, because he did not use people smugglers, instead fleeing by stealing a boat and assaulting a police officer: he therefore would not just be treated as an asylum seeker who departed the country illegally.  She submitted in writing that the applicant fled Vietnam illegally as a consequence of fleeing persecution for which he was found to be a refugee.  For reasons above the Tribunal does not accept the applicant’s claims to have assaulted a police officer when escaping the country or that he would be considered a people smuggler on return by the authorities.  With respect to stealing a government boat to flee Vietnam, even if it accepts the authorities would discover this fact, it finds remote that they would prosecute him.  Even if they do, the Tribunal finds they will do so under the criminal code, which is a law of general application.   

23. Based on the country information above, as discussed at hearing, the Tribunal finds that on return to Vietnam the applicant may be detained briefly and interviewed, and face a fine of between VND 2 million and VND 10 million.  It notes that in his oral evidence to the Tribunal the applicant stated that he has the support of his [adult] children and nephew in Australia and the Tribunal is therefore satisfied that they would be able to help him pay the fine if imposed on return for his illegal/irregular departure. His fears of persecution on this basis are therefore not well founded. 

24. For these reasons the Tribunal finds the applicant does not face a real chance of persecution on account of his illegal departure from Vietnam from the authorities or anyone else on the basis of imputed political opinion grounds, or any other ground.

    UNHCR mandated refugee

25. The Tribunal has also considered if the applicant faces serious harm on return to Vietnam as a UNHCR mandated refugee, as submitted.

26. In her written submission to the Tribunal the representative argues that the applicant as a UNHCR mandated refugee resettled in Australia is in another category to the returnees monitored by UNHCR on their return to Vietnam (who found they were not harmed on return on the basis of links to the former regime or having fled)[29].   The representative submits that this report is silent on whether these returnees had links to the former regime. 

    [29] As set out in the delegate’s decision record.

27. The representative also submitted that Vietnam is not a signatory to the United Nations Refugees Convention; country information[30] indicates that Vietnamese law does not provide protection against the return of people where their lives or freedom would be threatened for a Refugee convention reason; and there is no established system for providing protection to refugees. 

    [30] Referring to the earlier DFAT Country Information report Vietnam, 31 August 2015 at 5.27

1. The Tribunal accepts that the applicant was found to be a refugee by UNCHR in the past, and would return to Vietnam with a history of being a UNHCR mandated refugee who was resettled in Australia.  It accepts the Vietnamese authorities may know about his history in this respect.  However the applicant has not provided, nor is there information before the Tribunal to indicate that this aspect of his profile would result in him being of adverse interest to the Vietnamese authorities and face a real chance of serious harm on imputed political opinion grounds or for any other reason as a result.  The Tribunal therefore does not find he faces a well-founded fear of persecution on return to Vietnam as a UNHCR mandated refugee who was resettled in Australia.

   Access to medical treatment

2. In his statutory declaration provided to the Tribunal the applicant states that because of the way the authorities will view him due to his family background, criminal record, and being forced to return, access to medical treatment for his health conditions will be either denied or prohibitively expensive.  Specifically, he states that the authorities will see his [health conditions] in a bad light and not give him assistance or subsidies for illness; they will either refuse treatment or make any treatment prohibitively expensive.  They would deny his medical needs as another way to torture him.  At the Tribunal hearing the applicant said has [taken] medication to treat his [health condition] and needs further [tests] to see if his treatment is complete. 

3. The Tribunal accepts the applicant has [a certain medical condition] and has undertaken treatment in Australia and which requires further monitoring and possibly future treatment.  (It also accepts the submission that he has ongoing pain in his [body].)  However it is satisfied that he would be able to access medical treatment for this disease if required on return to Vietnam, noting he has the support of his adult children (and nephew) in Australia if he requires assistance to do so financially.  Given the Tribunal’s findings that he applicant does not face a real chance of serious harm from the authorities on account of his family’s links to the South Vietnamese army or old regime, because of his illegal departure from Vietnam (and stealing a government boat to do so) or as a failed asylum seeker, the Tribunal does not accept the submission that he would be refused medical treatment for his [medical condition] or any other health problems on return to Vietnam because of his criminal history of for any other reason.    

   Other matters:

4. It has been submitted that the applicant left Vietnam at a young age, lost all contact with his family and friends in Vietnam, lived half his life in Australia, and is not sure who to trust or where to go on return. The Tribunal accepts these claims and acknowledges that it may be difficult for the applicant to re-establish his life on return to Vietnam for a number of reasons, including the fact that he has lived in Australia from a young the age, his children live in Australia and he has no family or support mechanisms in Vietnam.   However for reasons above the Tribunal has found the applicant does not face a real chance of serious harm on return to Vietnam and the fact that he lived many years in Australia (and away from Vietnam) does not alter that finding. 

5. In her written submission to the Tribunal the representative sets out a number of concerns about the applicant’s treatment in Australia, including his deprivation of liberty under s.501(3A) of the Act, and the protracted process and (alleged) denial of procedural fairness in the assessment and administration of his subsequent attempts to seek revocation of his visa cancellation and applying for protection, which she states ‘could be viewed alongside other aspects of Australia’s contentious border protection regime that have received widespread condemnation and criticism for being akin to torture – as the desired result of inflicting these hardships on [the applicant] aims to force him to return to the harm he fled from in Vietnam.’ Other concerns listed include the lengthy time the Minister took to make the revocation decision, the fact the applicant has been held in detention since paroled (mainly on Christmas Island), and the fact that he has suffered PTSD triggered by the November 2015 riots. The representative also contended that his adverse treatment during his indefinite, mandatory and ongoing detention raises concerns about breaches of Article 9(1) of the International Covenant on Civil and Political rights (ICCPR), and possible breaches of Australia’s obligations under the UN Refugee Convention. The Tribunal is not in a position to comment about the applicant’s treatment by the Australian authorities in Australia including concerns about breaches of international law here which are not relevant to its assessment of whether or not he faces a well-founded fear of persecution on return to Vietnam.

   Conclusion – refugee grounds

6. Having considered the applicant’s claims individually and cumulatively – that is as someone whose relatives were killed, his family’s links to the former regime, his criminal convictions in Australia (including for drug related offences), his health (and mental health) status, being a UNHCR mandated refugee, and a failed asylum seeker who departed the country illegally (and stole a boat) - for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J of the Act. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection

8. In considering whether the applicant meets 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 applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Vietnam and the Tribunal therefore finds that Vietnam is the ‘receiving country’ for these purposes.

9. It is submitted the applicant satisfies the requirements under s.36(2)(aa), facing a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. It is submitted he would be detained and punished if returned, for the cumulative reasons of his claims (initial and sur place) as set out above.  It is submitted that he could be beaten and tortured in detention, which could lead to death.  The representative makes the following key points in her written submission to the Tribunal on these matters:

   ·The applicant has rights under Articles 12, 19, 21 and 25 of the International Covenant on Civil and Political Rights (ICCPR), among others.

   ·The applicant is protected by provisions under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 1 and 3).

   ·There is “overwhelming evidence” that Vietnamese police abuse and torture people in custody, people die in custody and asylum seekers and refugees are tortured after returning to Vietnam.

   ·If the applicant is removed from Australia and returned to Vietnam he is denied his rights under the ICCPR and is at risk of suffering significant harm in contravention of CAT.

   ·Once the applicant is detained by police, as is routine on arrival at the airport and at his local residence, there is a real risk he will suffer cruel and degrading treatment at the hands of the police and will not receive a fair trial.  He would be at risk of torture by the police and public security officials to obtain information or a confession (country information from a variety of sources is referenced to support the contention that police abuse and torture people in custody, and that they died in custody).  If he is allowed to live in the community, the authorities will ensure he will be denied rights to liberty of movement, freedom of expression, freedom of association and will place unreasonable restriction on his access to opportunities and equality.

10. It is submitted that the applicant is at real risk of significant harm (possibly death) on return to Vietnam by the authorities on account of his criminal record in Australia.  The representative argues the Vietnamese authorities will view his criminal record most seriously, may detain him on return, and may examine him for penal liability under Vietnamese law.  Further, together with how the authorities view his family background, this makes the applicant susceptible to punitive measures as well as adverse treatment by the authorities prior to and aside from any formal legal proceedings, and that this would be discriminatory and excessive considering he completed his sentence under Australian law, and would therefore involve Australia’s complementary protection. 

11. For reasons set out above, the Tribunal finds the applicant does not face a real chance of serious harm if he returns to Vietnam from the authorities or anyone else because of his family links to the former South Vietnamese army or government, his criminal record in Australia, as a failed asylum seeker (including in respect of the privacy breach), and as a UNHCR mandated refugee, given the circumstances of his departure from Vietnam, or because he would be unable to subsist.  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.[31] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J.  It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Vietnam on theses bases as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.

    [31] 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].

12. With respect to illegal departure, as this is a real risk faced by the population generally for those who breached the law that deals with irregular departure, and not by the applicant personally, the Tribunal also finds, under s.36(2B)(c), this is taken not to be a real risk that the applicant will suffer significant harm. For reasons above the Tribunal has found the applicant has the means to pay the fine that may be imposed on him for his illegal/irregular departure, based on his oral evidence at hearing that he has the support of his adult children in Australia.

13. The Tribunal has considered the applicant’s concerns about his particular vulnerabilities on return including his mental health concerns, health [concerns] and lack of contacts and family support in his home country. It accepts he has some mental health problems and other health [problems] and accepts that there is a lower standard of health care in Vietnam compared to Australia, for example. However, the Tribunal is not satisfied that the applicant would face a real risk of arbitrary deprivation of life or that the death penalty would be carried out as a result. With respect to the remaining definitions of ‘significant harm’ in s.5(1)[32] the Tribunal notes that there is a requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. Intent, in this context, requires an actual, subjective, intention on the part of a person to bring about the suffering by their conduct.[33]  Mere negligence, without more, will also not establish the necessary intention element of any of the definitions in s.5, including torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.[34] Establishing the necessary intention also likely requires identification of the individual(s) who will carry out the act or omission.[35] On the evidence before it the Tribunal is not satisfied that the applicant’s health status and lack of support meet the definition of these types of ‘significant harm’ because there is no intention on the part of the Vietnamese authorities or anyone else to inflict pain, suffering or extreme humiliation in relation to these matters. Furthermore, the Tribunal notes that the absence, or inadequacy of medical treatment in the country of return does not generally amount to a violation of Article 7 of the International Covenant on Civil and Political rights (ICCPR), required to meet the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment, set out in s.5(1). For reasons above in relation to his refugee claims, whilst the Tribunal accepts the applicant may face a level of ostracism and discrimination by the community if his past criminal history (including drug use) becomes known, it does not accept that he is likely to face community disapproval and /or discrimination amounting to significant harm.

    [32] That is ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment.’

    [33] SZTAL V MIBP (2016) 243 FCR 556 per Kenny and Nicholas JJ at [59].

    [34] See SZSPE v MIBP [2013] FCCA 1989 (Judge Emmett, 27 November 2013) at [68] and [72] (upheld on appeal SZSPE v MIBP [2014] FCA 267 (Yates J, 27 March 2014)) and SZTUL v MIBP [2014] FCCA 1985 (Judge Driver, 29 August 2014) at [31]-[32] (leave to appeal this judgment was dismissed: SZTUL v MIBP [2014] FCA 1427 (Logan J, 26 November 2014)). The same is equally applicable to any intention requirement in the s.5 definitions of s.36(2A) ‘significant harm’: SZTAL v MIBP [2015] FCCA 64 (Judge Driver, 24 February 2015) at [49] (upheld on appeal SZTAL V MIBP (2016) 243 FCR 556 per Kenny and Nicholas JJ at [18] and [80]).

    [35] While not considered on appeal in SZTAL v MIBP (2016) 243 FCR 556, the reasoning in SZTALv MIBP [2015] FCCA 64 (Judge Driver, 24 February 2015) and a number of subsequent cases suggests that the question of intention requires identification of the relevant individual(s) who will carry out the act or omission. For example, SZWDK v MIBP [2015] FCCA 2164 (Judge Smith, 14 August 2015) at [17] (upheld on appeal SZWDK v MIBP [2016] FCA 979 (Wigney J, 16 August 2016)).

14. The Tribunal has considered if the act of removing the applicant from Australia to Vietnam itself away from his children (even though they are now adults) of itself would meet the definition of ‘significant harm’ in s.36(2)(aa) and s.5(1). However for the reasons that follow the Tribunal also does not accept that the actual act of removal of the applicant from Australia falls within the scope of s.36(2)(aa), as it would appear from the words of s.36(2)(aa) and s.5(1) that these provisions do not encompass harm of this nature.

15. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[36] The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[37] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.[38] Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[39]  Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[40]

    [36] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.

    [37] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].

    [38] Ibid at [63].

    [39] Ibid at [64].

    [40] Ibid at [65].

16. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.

17. 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 applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm.

    CONCLUSION

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

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

21. decision

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

    Nicole Burns
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)   significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)   any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …

    
    

‘President signs order to announce amended nationality law’ 2014, Viet Nam News Agency, 1 July, CX1B9ECAB12632; and Decree: Detailing and guiding a number of articles of the law on Vietnamese nationality (Vietnam), 1 September 2009, art.23, Ministry of Justice (Vietnam),