1710533 (Refugee)

[2019] AATA 6552

1710533 (Refugee) [2019] AATA 6552 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710533

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Scott Clarey

DATE:2 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2019 at 3:12pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from loan sharks and/or economic reasons and corruption – sold land, house and business to come to Australia on prospective marriage visa – breakdown of relationship – reintegration back into Vietnamese life and society – prospects of employment – particular social group – social status of single mothers – religion – physical and mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASE

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of Vietnam, applied for the visas on 26 September 2014 and the delegate refused to grant the visas on 8 May 2017.

3. The applicants appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. I note that at the hearing, all applicants were asked questions and given explicit, individual opportunities to address, and raise issues with, the Tribunal.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country of nationality.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the probability of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

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

    Member of the same family unit

19. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children of the primary applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Identity

20. The applicants claim to be citizens of Vietnam and provided copies of their passports to the Department with the application. I find that the applicants are citizens of Vietnam, which is also the country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

    Relevant background

21. The primary visa applicant (Ms [A]), is a [age]-year-old Vietnamese citizen who was born in Vietnam. She stated that she belongs to the Kinh ethnic group (the majority ethnic group in Vietnam[1]), is a Buddhist, and speaks, reads and writes Vietnamese. Ms [A] grew up in Vietnam and is one of [number] siblings. Her mother died in 1986 and her father died in 2001. She has [siblings] living in Australia. Ms [A] has three children, Master [B] (aged [age]), Miss [C] (aged [age]) and Ms [D] who (aged [age]), all of whom are second named applicants to this application. I note that the second named applicants, at their request, will be considered as members of the same family unit as Ms [A] under s.36(2)(b) of the Act.

    [1] DFAT, Country Information Report – Vietnam, 21 June 2017, section 2.6

22. Ms [A] graduated high school in Vietnam and went on to complete tertiary qualifications in the [Subject] field.  After graduating university she worked in Vietnam for two years before moving to [Country] in 1989. She said that she returned to Vietnam in 1993, and began working [before] completing further studies to become [an Occupation 1]. She claimed to have worked as [an Occupation 1] for [International Organisation]. Ms [A] married her ex-husband in 1988. She said that after she gave birth to her third child in [year], her relationship with her ex-husband broke down and he left their home and never returned. She was officially divorced towards the end of 2002.

23. In 2003, Ms [A] was introduced to Mr [E] by her [sister]. Both Mr [E] and Ms [A]’s sister lived in Australia. Ms [A] and Mr [E] subsequently commenced a long distance relationship. At the time Ms [A] was running her own [business] in Vietnam. Mr [E] proposed to her in July 2005 and Ms [A] said that she initially wasn’t keen on the idea of marriage to Mr [E], because it would mean moving to Australia. She said that her life in Vietnam with her children was a happy and ‘stable’ one and she did not want that to change.

24. Ms [A] eventually agreed to the proposal and arrived in Australia [in] November 2006, accompanied by her three children, as the holder of a Prospective Marriage (Subclass 300) visa. Before departing Vietnam, Ms [A] said that she liquidated all of her assets, which included land, a house, and her [business premises]. She said that she didn’t recall exactly how much money she had at the time, but it was a considerable sum that she estimated to be around [amount] Vietnamese Dong in cash, the equivalent (in today’s money) of between $[amount] and $[amount] AUD. In February 2007 Ms [A] lodged an application for a Temporary Spouse (Subclass 820) visa. Ms [A] said she lived happily with Mr [E] for around two years however the relationship subsequently broke down. In December 2010 the Department refused her partner visa application and this decision was ultimately affirmed by the Migration Review Tribunal in June 2014. On 29 September 2014 Ms [A] applied for the protection visa under review.

25. I note that Ms [A]’s daughter, [Ms D] claimed to be currently married to an Australian permanent resident and have a [age]-year-old son who was born in Australia and is an Australian citizen. I note that [Ms D]’s child is not a party to the application and no claims for protection have been made on the child’s behalf. Although [Ms D]’s son is not included in the visa application under review I have considered any issues put forward by [Ms D], and those arising on the facts, relating to her child where relevant.

    Claims from the protection visa application

26. Ms [A] set out her claims for protection in her application form as follows (unedited):

    Why did you leave that country?

    Although I lived in Vietnam, however, I witnessed that 90% of teachers in every schools in Vietnam gave high scores for people who gave them money. If we do not have money, even we are good, we cannot pass exams. In some parents-teachers interview, I have spoken up about it and my daughters were hated. My daughters future was ruined.

    Did you experience harm in that country?

    Although I was not beaten physically but mentally I was obsessed. The more harmful. Thing than my physical pain is corruption. Increasing the gap between rich and poor. It was incalcuted in my mind the impression of injustice, provoked outrage with the communist regime, making me lose faith in

    What to you fear may happen to you if you go back to that country?

    Our family have been living in Australia for 8 years. My children see Australia as their homeland, they have been taught about history, culture, heritage and how freedom is of Autralia. We are integrating to Australian community, therefore we sold all properties that we had in Vietnam to care for living in Australia. More than that, we do not have any relative, only my brother who are suffering from cancer still live in Vietnam. With our difficulty, no money, no properties, how can we live, how can my children study in Vietnam? When corruption are everywhere in Vietnam and it is getting bigger and cannot be topped, we, poor people- honest people, will be excluded by corruption. If we do not have any money, we could not find the job, we could not get the high scores in schools. To be able to live in Vietnam, we have to loan money from lenders with high interest, if we could pay back in time, we could be beaten an imprison by people who have authorities.

    Who do you think will harm/mistreat you if you go back?

    In Vietnamese society, corruption and briber are key issues which will push our family to the dead end.

    Why do you think this will happen to you if you go back?

    Because we do not have any houses to live, any money to use, on the top, we are no one in Vietnamese society. I have to loan money with high interest to be able to live and care for my family. If I could not pay in time, I will be subject to loan sharks who will try to kill me if I do not pay them back.

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

    Corruption in Vietnam society is persistent problem. In fact, in most places of Vietnam, corruption is happening like a ‘syndrome’ of robbery, they take advantage of their rights and money to do wrong things. Poor and honest people can never have protection from

27. Ms [A]’s representative made a post hearing submission (dated 2 October 2019,) on behalf of his client. Ms [A]’s representative also submitted a report (dated [September] 2019) from a registered psychologist. I have carefully considered these submissions and relevant issues raised within them are discussed below. I note that the representative’s submission stated that ‘it is respectfully submitted that the claims advanced by [Ms [A]] cannot hope to meet the threshold criteria for a protection visa based on convention reasons, however, issues with respect to what might broadly be described as social dislocation and health will be issues relevant to your determination in the current case’. These issues are discussed further below.

    Findings and reasons

28. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the reasons set out in Article 1A(2) of the Convention on return to Vietnam and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Vietnam, there is a real risk they will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

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

    Assessment of claims

30. Ms [A] claims to fear that if she returns to Vietnam then she will face economic hardships and fall victim to loan sharks. She has also made claims relating to her health. For thoroughness, I have also considered issues relating to [Ms D]’s religion and the situation facing single mothers in Vietnam that may arise on the facts of the case.

    Fear of harm from loan sharks and/or economic reasons

31. At the hearing Ms [A] stated that she and her children had been living in Australia for 13 years and that they had very little to return to in Vietnam. She stated that her family would find it difficult to reintegrate back into Vietnamese life and society. She stated that her family would face many difficulties if they were to return to Vietnam and she did not want her children to suffer. Ms [A] stated that, from what she had seen on TV and heard on the radio, loan sharks were still a common problem in Vietnam. She said that she may be forced to borrow money from loan sharks and if she were to borrow money she feared falling victim to their unscrupulous practices that she had heard about through the media. When I asked if this was a speculative fear based on what might happen in the future or if she owed money now, Ms [A] clarified that she did not owe any money at present, she had never had any dealings with loan sharks personally, but she may be forced to incur debts upon return to Vietnam and she feared what may happen subsequently if this were to occur. She said that she did not have any assets in Vietnam so the prospects of her obtaining a regular loan through the mainstream finance sector were low.

32. When asked what became of the significant financial assets she arrived in Australia with, Ms [A] stated that some of her savings were squandered by Mr [E]. She stated that she currently owned a house in Australia, and had a joint mortgage with her son-in-law. She said she purchased the property in 2014 for approximately [amount]. She said she still had some savings and she also owned her own car, although she stated that she had been unable to work because of conditions imposed by her current bridging visa.

1. Ms [A] stated that she also had general concerns related to official corruption in Vietnam. She said that there was no reason to believe that she would be singled out or specifically targeted by corrupt officials. I note that Ms [A] struggled at times to specifically identify the harm she feared on returning to Vietnam, and spoke in very general terms about difficulties she and her children may face if they were to return. She said that corruption was a common problem in Vietnam and that people like her found it difficult to survive in such a society. She said that she had no connections to high-ranking people which would make it hard for her to gain employment, and no money to ‘grease the palms’ of officials to ensure her children gained employment or further education.

2. I note the following country information about Vietnam’s economy, drawn from the most recent Department of Foreign Affairs and Trade Country Information Report on Vietnam, which was discussed with Ms [A] at the hearing:[2]

   The World Bank describes Vietnam as ‘a development success story’. Economic reforms (known as Đổi Mới or ‘Renovation’ reforms) launched in 1986 transformed the country from one of the poorest in the world at that time to ‘low middle income status’ over a period of 25 years. Its per capita GDP growth is recognised as one of the fastest in the world, with per capita income moving from USD100 in the early 1990s to around USD2,100 by the end of 2015.

   While the national poverty rate has declined significantly, from 58 per cent in the early 1990s to 13.5 percent in 2014, it is still above 50 per cent in ethnic minority areas. Rural populations are susceptible for falling back into poverty due to declining productivity growth and economic vulnerabilities. Recurring environmental effects and Government decisions relating to land acquisition and manufacturing or mining production are more likely to affect rural populations.

   Vietnam is ranked 115 out of 188 countries in the latest United Nations Human Development Index (HDI). Transparency International’s 2016 Corruption Perceptions Index (CPI) ranked Vietnam 113 out of 176 countries; compared with Cambodia at 156, Laos at 123, Thailand at 101 and China at 79.

   [2] DFAT, Country Information Report – Vietnam, 21 June 2017, sections 2.8, 2.9 and 2.10.

3. Ms [A] stated that she would find it hard to gain employment because of her health and that she would struggle to fit back in to Vietnamese society. Ms [A] stated corruption had been going on a long time in Vietnam and gave a general example of people buying their way out of traffic fines.

4. As I explained to Ms [A] at the hearing, I consider her concerns to be highly speculative based on hypothetical future scenarios that have no antecedent in her past. While I acknowledge and accept that it may be difficult for the applicants to re-establish their lives on return to Vietnam for a number of reasons, including the fact that they have lived in Australia for an extended period, I am not satisfied that this would arise to the level of serious or significant harm. I do not accept that Ms [A], who (by her own admission) has obtained a number of tertiary qualifications (including a [Subject] degree), and has extensive work experience, would be precluded from finding employment on return to Vietnam and/or would be forced to incur debts from loans sharks. I note that prior to departing for Australia in 2006, Ms [A] ran her own successful business and described her life in Vietnam as a happy and ‘stable’ one. I also note that by her own admission, Ms [A] claims to possess significant financial assets in Australia, including half-ownership of a house. Similarly, I note that the second named applicants have all been educated in Australia and can speak and read both Vietnamese and English.

5. For these reasons I do not accept that Ms [A] and/or her children would be at risk of becoming destitute, would be precluded from finding employment for any reason, and/or would otherwise be unable to subsist on return to Vietnam. I note that her representative, in his post hearing submission of 2 October 2019 stated that ‘…the claims advanced by [Ms [A]] cannot hope to meet the threshold criteria for a protection visa based on convention reasons…’. Given the available country information (discussed with the applicants at the hearing), and after considering the evidence before it relating to their life histories and personal circumstances, I am not satisfied that the applicants face a real chance of suffering persecution involving serious harm upon their return to Vietnam from loan sharks and/or their agents, the Vietnamese authorities or anybody else for any reason. I find that the applicant’s fears of persecution on this basis are not well founded.

   Oral evidence of the second named applicants

6. I note that Ms [A] confirmed at hearing that the second named applicants were applying as members of her family unit. Although Ms [A]’s representative stated at hearing that he did not think it was necessary, in light of Ms [A]’s evidence, for the second named applicants to give oral evidence to the Tribunal directly, I elected to give them an opportunity at hearing to do so.

7. When Master [B] was given an express opportunity to address, and raise issues with, the Tribunal, he stated that his primary concern if they were sent back to Vietnam was his and his mother’s health. He said that his mother has [a medical condition] and that he has [a related medical condition]. He said that he had in 2012 been treated at the [Hospital] for what he described as ‘[deleted]’ and he gets check-ups every six months (issues related to the applicants’ health are discussed further below). He stated that ‘since I have been going to school here for nearly 12 years, I think that my future here would be more beneficial to Australia and my family’. He said that he could not go to school in Vietnam because he did not know how to read or write Vietnamese.

8. When Miss [C] was given an express opportunity to address, and raise issues with, the Tribunal, she stated that the family had a good life in Australia and that she wanted her dream to study in Australia to come true. She said that she had finished year 12 in Australia but was unable to attend university because of conditions attached to her bridging visa.

9. When [Ms D] was given an express opportunity to address, and raise issues with, the Tribunal, she stated that the family really wanted to contribute to Australia but were prevented from working at the moment. She said that her husband and son ‘probably they can’t live in Vietnam’, but did not further elaborate on the reasons why she thought this to the case. She said that she did not want to live apart from them. She said they found the current situation stressful. She said that her husband was in the process of becoming an Australian citizen and that her son was an Australian citizen.

10. I have considered the potential impact on the second named applicants if they were to return to Vietnam in the foreseeable future, having lived a significant portion of their lives in Australia. While I accept that the second named applicants may face some difficulties in readjusting to life back in Vietnam, I find there is nothing in the evidence or the available country information to indicate or suggest that this would arise to the level of serious or significant harm. As noted above, [Ms D] told the Tribunal at hearing that her husband and son may not be able to return to Vietnam with her, although did not provide specific reasons why she thought this to be true. Having had regard to Vietnam’s Law on Vietnamese Nationality, as [Ms D] is a Vietnamese citizen, I am satisfied that her son would therefore have the right to Vietnamese nationality.[3] On the evidence before me, I am not satisfied that [Ms D] would be involuntarily separated from her husband and son if she were to return to Vietnam in the foreseeable future.

    Issues relating to being a single mother in Vietnam

    [3] See Article 16 of the Law on Vietnamese Nationality of 13 November 2008 (No. 24/2008/QH12)

11. I note that at no point has Ms [A] or [Ms D] expressly raised any claims related to their possible status (imputed or otherwise) as single mothers if they were to return to Vietnam in the foreseeable future, including when given an explicit opportunity to address the Tribunal directly at hearing.

12. Although I do not believe this to be a significant issue, for thoroughness I have nevertheless considered this matter as it may relate to Ms [A]’s and [Ms D]’s situation in light of the following country information about the status and treatment of single mothers in Vietnam.

13. A 2017 article in The Straits Times of Singapore titled ‘Vietnam's working women opting to stay single’ stated:

    ‘In its 2015 report on social inequality, the international development organisation Oxfam assessed that Vietnam was one of the countries with the highest female participation in the labour force across South-east Asia.

    Vietnam has been cited by the World Bank for being able to close gender gaps in education, access to healthcare, and many aspects of employment since the early 1990s.

    Last year, 72.2 per cent of Vietnamese working-age women were in the labour force compared to 81.7 per cent of men, the General Statistics Office said.

    Ms Nguyen Thi Dieu Hong, a former gender specialist at the United Nations Development Programme, said the number of single mothers has also been increasing in Hanoi, Ho Chi Minh City and Danang City.

    "The majority of them are highly educated and can earn a good living so they can finance themselves and their babies," she said.[4]

    [4] ‘Vietnam's working women opting to stay single’, The Straits Times, 29 April 2017,

14. A 2017 article published by the Xinhua News agency titled ‘Single women enjoying independent lives on the rise in Vietnam’s cities’ noted that the ‘right to motherhood of single women had been officially recognised by the Vietnamese government since 2003, by allowing them to receive sperm donations and have a baby through In virto fertilization’. The article also noted that ‘In 2006 and 2007 respectively, a gender equality law and anti-domestic violence law were ratified by the country's National Assembly, making Vietnam one in only a handful of countries in the world with both laws in place’.[5]

    [5] ‘Single women enjoying independent lives on the rise in Vietnam's cities’, Xinhua News, 28 April 2017, >

    A 2017 article by Vietnam Culture notes that in Vietnam ‘traditional family values were accomplished by the fulfilment of traditional roles: the role of man and woman as parents’.[6] The same article reports that: ‘pregnancy out of wedlock is uncommon, and it is a grave disgrace to the family’.[7]

    [6]‘Vietnamese Traditional Family Values’, Vietnam Culture, 2017, CISEDB50AD225, para.4, p.1

    [7] Ibid, para.5, p.1

15. International Social Service (ISS) reported in 2015 that the family ‘is considered the fundamental unit of society’ and is of ‘cultural importance’.[8] They also reported that single and unmarried women risk ‘abandonment or relinquishment’.[9]

    [8]‘Qualitative research into the root causes of child abandonment and child relinquishment in Viet Nam’, International Social Service, 2015, CISEC96CF15036, para.4, p.10

    [9] Ibid, para.1, p.86

16. That same report by ISS indicates that stigmatisation is most apparent with ‘never married mothers’ but that societal perceptions were changing in the younger generation and ‘despite changing ideas on single mothers’ the ‘‘happy’ family norm is still very dominant’.[10] The report also states that stigma still exists but notes that the ‘meaning of single motherhood is rapidly changing in Viet Nam and [is] not seen any more as a very transgressive event’.[11]

    [10] Ibid,para.5, p.78

    [11] Ibid, para.1, p.64

17. The 2011 United Nations CEDAW report for Vietnam indicates that while a gender bias persists and the status and circumstances of women remain of concern, particularly in rural and remote areas and among the poor, the status of women within the family and in the wider society has improved, including their ability to access basic health and educational services, to be dealt with justly by the police and judiciary and to engage with government.[12] The same report details a campaign to support poor women, single women and women with disabilities through the provision of accommodation throughout the country and the establishment of a Centre for Women and Development which undertakes activities to support marginalised or vulnerable women, providing life skills and assisting integration into the community.

    [12] United Nations Committee on the Elimination of Discrimination against Women 2014, Consideration of reports submitted by States parties under article 18 of the Convention, seventh and eighth period reports of States parties due in 2011: Viet Nam, 13 December

18. As noted above, I am not convinced [Ms D] would return to Vietnam as a single mother (or ever be imputed to be one) because she is married to the father of her son and because I am not satisfied that she would be involuntarily separated from them if she were to return to Vietnam in the foreseeable future. I do accept that Ms [A] is a single mother. Although the above country information indicates that single mothers (or those that are imputed to be) can face a degree of ostracism and discrimination in Vietnam, I do not consider that it would arise to the level of serious or significant harm. Country information indicates that single mothers and their children are legally legitimate under Vietnamese law. Given this country information, and after considering the personal circumstances of [Ms D] and Ms [A], I find that they do not face a real chance of serious harm upon return to Vietnam for reasons relating to being a single mother or being perceived as single mother or for any other reason.

    Issues relating to religious beliefs

19. I note that at no point has [Ms D] expressly raised any claims related to her religion, including when given an explicit opportunity to address the Tribunal directly at hearing. I note that although [Ms D] stated that she was a Buddhist on her ‘Application for a Member of the family unit’ (866D) form,[13] the psychologist report of [September] 2019 (referred to above) appears to indicate that [Ms D] is now a Catholic and was married in a Catholic ceremony to her husband in Australia in December 2015. Although I do not believe this to be a significant issue, for thoroughness I have nevertheless considered this matter as it may relate to the case under review.  

    [13] Department folio 38

20. I note the following country information about religion drawn from the DFAT Country Information Report: [14]

    Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam.

    The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.

    DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.

    [14] DFAT, Country Information Report – Vietnam, 21 June 2017, sections 3.09, 3.10 and 3.13

21. Even if [Ms D] is now a practising Catholic (a claim that she was never expressly made), after reviewing the country information outlined above, and after considering the evidence before it relating to [Ms D]’s personal circumstances, I find that there is nothing in the evidence before me to suggest that [Ms D] would face a real chance of suffering persecution involving serious harm on return to Vietnam as a consequence of her (possible) Catholic faith or for any reason related to her religious beliefs in general. 

    Issues related to the applicants’ health

22. As noted above, in his submission of 2 October 2019, Ms [A]’s representative presented arguments related to Ms [A]’s health (including mental health) as they relate to her case. Ms [A]’s representative also submitted to the Tribunal a report (dated [September] 2019) from [a] registered psychologist in Melbourne. The psychologist report provided an extensive background relating to Ms [A]’s life history and personal circumstances. The report stated that:

    [Ms A] and her children commenced treatment since September 2013, in the early stages of treatment, [Ms A] and her daughters attended regularly on a fortnightly basis. Each session is about 50 minutes to an hour in duration. In regards to [Ms A]’s youngest son, [Master B], his therapy has been less frequent as his psychological and emotional distress has stabilised with additional support at home, school and social network.

23. The report stated that ‘based on clinical assessment and test results, [Ms [A]] and her three children exhibited symptoms consistent with Clinical Depression, Clinical Anxiety with symptoms of Family Trauma’. Under the heading ‘Suicidal Risk Assessment’, the report stated:

    A suicide/self-harm risk assessment was conducted consistently during treatment. [Ms A] disclosed having suicidal ideation, particularly when she and her children were constantly met with significant grief, losses, marriage problems and residency problems. [Ms A] revealed that she and her children are faced with deep sadness, guilt, shame, hurt and fear each day. [Ms A] stated "It’s all my fault for putting my children through all this", "I’m useless, I just want to end all this suffering".

    Furthermore, [Ms D], [Ms C] and [Master B] disclosed that if anything happened to their mother or if they were robbed of their lives in Australia which has predominantly been their home and safety haven for the almost 13 years, they stated that they would all die together rather than being forced to Vietnam.

    It is important to note that as long as [Ms A] and her children are together with their family in Australia they feel secure and safe. Upon further assessment, [Ms A] indicated that although she has thoughts of dying when feeling fearful and useless, however, she could not do it to her children and grandson as they need her.

24. I note that at the hearing, Ms [A] threatened to commit suicide if she did not get a favourable outcome at the Tribunal, stating that if she was forced to leave Australia, she would kill herself. I note that her representative’s submission of 2 October 2019 stated that Ms [A]’s threat of suicide made at the hearing was ‘not necessarily a statement of intent but rather a frank exhibition of her mental illness…I would ask that the Tribunal make a finding that the Applicant was not seeking to intimidate or coerce the Tribunal but rather exhibiting her evident distress and concerns about the future of her family’.

25. I accept that the applicants suffer from health conditions, including mental health issues. I accept that Ms [A] suffers from [medical condition] and her son [Master B] suffers from what was termed [related medical condition] in oral evidence at the hearing. I accept that the uncertainty surrounding their visa status is a cause of significant emotional distress for the applicants. I accept that Australia’s healthcare standards are higher than those in Vietnam, and that there may be costs associated with accessing healthcare in Vietnam. I note that DFAT country information states that the Vietnamese Government:[15]

    …provides access to basic health care for all citizens, in both urban and rural areas...Those in rural areas also have access to specialists in urban areas. Funding for health care facilities is based on the number of registered citizens in a particular area (see Household Registration). However, the Government has taken measures to increase relative healthcare expenditure in rural and remote communities in an effort to ensure more even development outcomes across the country. Overall life expectancy in Vietnam is around 71 years for males and 80 years for females. The infant mortality rate was 17.8 deaths per 1,000 live births in 2014, compared with a global rate of around 32 and a rate of around 6.5 for Australia.

    [15] DFAT, Country Information Report – Vietnam, 21 June 2017, section 2.11.

1. Given the available evidence before me, I am not satisfied that Ms [A] and/or her children would be unable to access medical services and obtain medical treatment in Vietnam for any reason if it were required. I note that Ms [A] has not made any claims that she or her children would be discriminated against and/or denied appropriate health support services (including mental health services) in Vietnam if they were required. I am not satisfied that Ms [A] and/or her children have a medical condition (including any condition relating to their mental health) that is directly relevant to the review at hand. For these reasons I find that the applicants are not at risk of suffering serious or significant harm in respect of their health conditions should they return to Vietnam in the foreseeable future. I do not consider that Ms [A] or her children were hindered by their health in their ability to give evidence at the hearing.

   Request for Ministerial intervention

2. I note that Ms [A]’s representative, in his submission of 2 October 2019, requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

3. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’. After considering the request in the context of Ms [A]’s particular claims and circumstances, I have decided not to refer the matter to the Department for consideration by the Minister.

4. I note that Ms [A] can still make a request directly to the Minister.

   Conclusion – refugee grounds

5. Having considered the applicants’ claims both individually and cumulatively, all of the available evidence and relevant country information, I find that they do not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that their fear of persecution is not well-founded.

6. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) of the Act.

   Complementary protection

7. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). In this regard I have considered whether there is a real risk the applicants will suffer significant harm, as a necessary and foreseeable consequence of their being removed from Australia to Vietnam.

8. In considering whether there is a real risk that the applicants will suffer significant harm in these circumstances, the Tribunal has noted that in MIAC v SZQRB [2013] FCAFC 33, 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 relation to the ‘refugee’ criterion.

9. Having regard to the findings of fact set out above, I find that there is not a real risk that Ms [A] or the second named applicants would suffer significant harm as defined at s.36(2A)(a)-(e) of the Act. That is, I do not accept that there is a real risk that they will be arbitrarily deprived of their life; or have the death penalty carried out on them; or be subjected to torture; and/or subjected to cruel or inhuman treatment or punishment; and/or subjected to degrading treatment or punishment, from loan sharks and/or their agents, the Vietnamese authorities, or anyone else for any reason, as a necessary and foreseeable consequence of them being removed from Australia to Vietnam.

   Conclusions

10. For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

11. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

    Scott Clarey
    Member