1710943 (Refugee) [2017] AATA 3139 (29 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1710943
COUNTRY OF REFERENCE: Vietnam
MEMBER:Nicole Burns
DATE:29 August 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 August 2017 at 11:53am
CATCHWORDS
Refugee – Protection – Cancellation – Vietnam – Subclass 155 visa – Character grounds – Convicted of murder – Lived in Australia since childhood – Non-refoulement obligations – Failed asylum seeker – Returned to Vietnam multiple times – Mother living in Vietnam – New claims at the Tribunal – Religious oppression – Cao Dai – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 5H, 5K-5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183
MIAC v SZQRB [2013] FCAFC 33
SZJTK v MIAC [2008] FCA 1712
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
This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 6 March 2017. The delegate refused to grant the visa on 22 May 2017.
On 25 July 2017 the applicant gave oral evidence to the Tribunal via video link from [Immigration Detention Centre 1]. The Tribunal also received oral evidence from [Ms A], counsellor at [Social Welfare Organisation 1]; [Ms B], President for [Community Organisation 1], [State 1] Chapter; [Ms C], the applicant’s former mother-in-law; [his] aunt, and three [cousins]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent. She attended the Tribunal hearing.
The issues is 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) on return to Vietnam 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 he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Request for in-person hearing
The Tribunal notes that on 17 July 2017 the applicant’s representative requested in writing that the applicant’s case be heard in person in Australia (instead of via video-link from [Immigration Detention Centre 1]) stating that it is ‘clearly in the best interests of the client that he attend in person’ (she did not elaborate).
In exercising its discretion to allow an applicant’s appearance to be undertaken by telephone, closed circuit or any other means of communication, the Tribunal recognises that it must exercise its discretion reasonably (MIAC v Li [2013] HCA 18) and having regard to all the relevant circumstances of the case, including: whether the applicant’s appearance by such technology would give the applicant a fair opportunity to give evidence and present arguments; whether its questioning of the applicant is likely to be conducted fairly and effectively; whether it would be able to properly make any necessary assessment of the applicant’s credibility; whether it may need to put a large quality of documents to the applicant; and whether delays and costs may be caused if the appearance were not be conducted in that way (SZJTK v MIAC [2008] FCA 1712 at [26]). The Tribunal notes that further guidance on relevant factors to be considered in arranging hearings for persons in detention are also set out in part 6 of the ‘Conducting Migration and Refugee Reviews President’s Direction’ dated 30 June 2015.
The Tribunal acknowledges that face to face hearings are preferable to those conducted by telephone or video link. However having regard to all the relevant circumstances of the case the Tribunal decided that the applicant would be afforded a fair hearing by video-link and advised the representative accordingly by email on 20 July 2017.
On the day of the hearing the applicant spoke in English, there were no technical problems, and the Tribunal considered the quality of the audio and picture clear, despite a slight lag in audio at times. The hearing room was arranged so all parties could see each other in reasonably close range. Mindful that the applicant was not limited in his evidence or argument in any way by technology, the Tribunal enquired that the parties could hear and indicated at the start of the hearing (and when adjournments resumed) to the applicant to interrupt and seek clarification if there was any problems with the audio or technology. The Tribunal is satisfied the applicant was provided with an opportunity to give and present evidence and was afforded a fair hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
According to information on the Departmental and Tribunal file and the applicant’s oral evidence to the Tribunal, the applicant was born in [year] - making him [age] years old – in Ca Mau Province, Southern Vietnam. He left Vietnam with his uncle in the early nineties, spent time in [Country 1] and [Country 2] before being granted a Class BF Subclass 200 Refugee (Permanent) visa and arriving in Australia on [date] May 1993 with his uncle and his uncle’s family. On [date] July 2000 he was granted a Class BB Subclass 155 Resident Return (Permanent) visa. The applicant travelled back to Vietnam on three occasions and on return to Australia after the third visit on [date] October 2000 he was arrested at [Australian city 1] airport. On [date] May 2002 the applicant was sentenced [to] 14 years’ imprisonment, with a non-parole period of nine years, for a conviction of murder, and 12 months’ imprisonment for a conviction of unlawful imprisonment. On [date] June 2002, the applicant was sentenced to a further 10 years’ imprisonment for another conviction of murder. On [date] January 2015 his permanent residency (Subclass 155) visa was cancelled on character grounds and a decision was made not to revoke the original cancellation decision on 21 June 2015. The applicant appealed this decision in the Federal Court of Australia (FCA) and on 5 October 2016 the judge in that case dismissed the appeal.[1]
[In] January 2015 the applicant was granted parole and released into immigration detention at [Immigration Detention Centre 2]. He currently resides in immigration detention [in Immigration Detention Centre 1].
The applicant’s parents divorced when he was young and his father died around two years ago in Vietnam. His mother currently lives in Vietnam with her niece and nephew. The applicant was an only child. Most of his extended family members reside in Australia, as does his [age] year old daughter, whose mother he separated from many years ago.
The Tribunal accepts the applicant’s evidence as to his family, work and criminal history in Australia.
Country of nationality
In his application form the applicant states his citizenship at birth was ‘Vietnamese’ but he is currently ‘stateless’ because he left Vietnam when he was very young and has never had a Vietnamese passport, valid Vietnamese birth certificate or family registration. Citing a 2011 UNHCR report[2] that states that the Vietnamese government considered returnees to be Vietnamese citizens, the delegate found the applicant to be a Vietnamese citizen.
[2] Ballard, Brett 2002, ‘Reintegration programs for refugees in South-East Asia’, UNHCR website, April, p 41.
In a written submission to the Department the applicant’s representative submits that the applicant considers himself to be ‘stateless’ with no right or automatic entry to any country now that his permanent visa has been cancelled. As well, given he has no Vietnamese identity card and no family registration entitlement in Vietnam he cannot return there and he is not eligible for a Vietnamese passport.
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[3].
[3] Law on Vietnamese Nationality (Vietnam), effective 1 July 2009, art.13, Ministry of Justice (Vietnam), CX5E56FED19418;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 and never had a Vietnamese passport 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.
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
In her written response to the Tribunal’s hearing invitation the representative states that the applicant is in detention on [Immigration Detention Centre 1] and ‘has untreated mental health issues because of his situation and past’. She submitted to the Tribunal a selection of the applicant’s medical records from the International Health and Medical Services (IHMS) of the applicant’s sessions with psychologists and mental health nurses (primarily) in the period from 15 January 2015 to 11 July 2017.
At hearing the applicant said he has seen a psychologist numerous times in gaol and whilst in detention whom he talks to about his past, his family, and his fight to remain in Australia, among other things. He said he was not currently taking any medications and did not indicate he had been diagnosed with any mental health conditions. The Tribunal notes the IHMS records provided indicate that at times the applicant has felt anxious and frustrated, particularly since he was transferred to [Immigration Detention Centre 1] away from his family and friends in [Australian city 1]. Further he has experienced ‘situational anxiety’ around his immigration status and concern for his daughter in Australia, for example. In the most recent report provided dated 11 July 2017 the psychologist indicates the applicant is worried about his ability to cope if he has to return to Vietnam and the outcome of his review application, but notes he is resilient. In an earlier consultation with a mental health nurse – on 21 June 2017 – it is noted that the applicant has no significant mental health pathology. Given these considerations, whilst the Tribunal accepts the applicant may be experiencing anxiety and frustration at times, it is satisfied that his mental health issues are not 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. 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
The applicant seeks to invoke Australia’s protection obligations on the basis of his family members being connected to the former South Vietnamese government, because he departed Vietnam illegally, and because of his criminal history in Australia. He fears serious harm from the authorities and/or the community for these reasons on return and fears such discrimination will affect his chances of employment and he will struggle to subsist. The Tribunal has also considered if he faces a well founded fear of persecution on return to Vietnam as a failed asylum seeker and in respect of his Cao Dai religion.
The applicant set out his initial claims for protection in his application form as follows.
Why did you leave that country?
I came as a refugee with my maternal uncle and family seeking asylum – we travelled via [Country 1] an [Country 2] where we were accepted as refugees by Australia. I was granted a permanent visa and arrived in Australia on 26 May, 1993. I held a s/c 200 visa a that time.
What do you think will happen to you if you return to that country?
I will be an outcast because I have never been in Vietnam as a responsible adult. When I went there I was on an Australian travel document. I have never had a Vietnamese passport and I have no Vietnamese ID or family registration. I consider myself to be stateless. The Vietnamese Government will investigate my family’s past history and as so many of my extended family are in Australia I will be persecuted because of them if I give them my family details. I do not think the Vietnamese Government will accept me back.
Did you experience harm in that country?
Yes. My family were persecuted which is why my uncle took me with him and his family to Australia. At that time South Vietnamese in our area were being persecuted very badly and many fled overseas. We were in a village and region known to have resisted the Viet Cong. CA MAU was known for this.
Did you seek help within the country after the harm?
No. I was only a child.
Did you move, or try to move, to another part of that country to seek safety?
No. I was dependent on my extended family and had to do whatever they directed. So we fled to [Country 1] and then to [Country 2].
Do you think you will be harmed or mistreated if you return to that country?
Yes. I have no family records in Vietnam so I have no legal right of return and residence. I will be homeless even if the national Government accepts me back the local Government officials will persecute me. At very least I will be beaten and forced not hard labour. If the local people find out I have been convicted of the murders of 2 other Vietnamese young people in Australia I am very likely to be killed especially if their relatives find out.
Do you think the authorities of that country can and will protect you if you go back?
No. I have not live there since I was a child. I do not have any family there except my biological mother who I don’t really know. They will see me as a failure and a murderer so they will not care because I am from Ca Mau.
Do you think you would be able to relocate within that country?
No. I have no family registration and no Personal ID. In Vietnam you cannot travel without those documents. If you do you are subject to arbitrary arrest and imprisonment.
[errors in original]
The representative provided a written submission[4] to the Department (a copy of which was provided to the Tribunal) about the applicant’s background and addressing the applicant’s specific claims, as well as case law references, which the Tribunal has taken into account where relevant.
[4] Dated 5 March 2017
On review the applicant submitted a typed letter dated 11 July 2017 as well as letters of support from relatives and community members in Australia (many of whom also gave oral evidence to the Tribunal). His representative provided country information from a range of sources about, among other things, restrictions on religious freedom in Vietnam, the human rights situation in Vietnam (including allegations of police brutality), and treatment of returnees, which the Tribunal has taken into account where relevant.
The applicant provided oral evidence to the Tribunal about his background and specific protection claims, summarised as follows.
The applicant said he came to Australia with his uncle and his family in May 1993 from a refugee camp in [Country 2] where he had spent three years (and six months in [Country 1] prior to that). He left Vietnam in the early nineties when he was around [age] years old.
The applicant comes from Ca Mau Province in Southern Vietnam. His parents divorced when he was young and he remained living with his mother until she handed him to her brother to take him away from Vietnam, worried about his safety because her family members had been involved with the South Vietnamese army/regime. Specifically the applicant said his (maternal) uncle who was involved with the South Vietnamese army was killed a few years before the applicant left Vietnam.
The applicant said a few years after he left Vietnam he found out his mother was in another relationship. They used to have occasional phone contact but he has not had any contact with his mother for the last two and a half years. He is not sure where she currently lives in Vietnam, but thought it was in the south somewhere, around an hour’s drive away from Ca Mau city, residing with her niece and nephew (and no longer in a relationship). The applicant has no other relatives in Vietnam: most of them have moved to Australia.
When asked if his mother, who has remained in Vietnam, experienced any problems from the authorities because of her family’s links to the South Vietnamese army, the applicant replied “yes” noting that she is too scared to talk over the phone about the regime. She told him the authorities gave her a hard time “at one stage” but was now too old. Asked how they gave her a hard time the applicant said she told him two years ago the authorities had sent a letter to her house and told her to go to the police station and if she refused she would be sent to gaol or fined. She said she had had enough and he is not sure what happened – whether she went to the police station or not – and he has not spoken to her for over two years. The applicant added that the government in Vietnam is the same as the government as 20 or 30 years ago and people are unable to say anything against the Party.
The applicant said he returned to Vietnam from Australia three times: the first time in 1994 with his aunt to see his mother and grandmother for a few months; the second time in 2000 with his then wife and her mother, her brother and their daughter for a few weeks holiday; and the third time also in 2000 (a few weeks after returning from the second trip) for about a week ‘for personal reasons’. When the applicant returned from the last trip on 5 October 2000 he was arrested at [Australian city 1] airport and sentenced for criminal offences committed in [Australian city 2] in 1996.
The applicant said he is scared about returning to Vietnam now because he fled when he was a child, was accepted as a refugee by Australia, has spent his formative years here and learnt everything here, has no family record or identity documents in relation to Vietnam or family registration, he knows nothing about Vietnam, even though he speaks Vietnamese it is not as good as his English, his past is ‘not nice’ (he has paid his debt here and is deeply sorry) and because he would be an outcast on return. He is not sure what the Vietnamese authorities would do to him on return. As well he has no place to go and no support and fears he would be homeless.
Family links to the former South Vietnamese government
The Tribunal has considered the applicant’s claim to fear serious harm from the Vietnamese authorities on return because of his family’s links to the former South Vietnamese government.
The Tribunal has considered country information about the treatment of supporters of the 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[5] 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[6]. This analysis is reflected in a recent report from the UK Home Office on Vietnam on political opponents, wherein those at risk of arbitrary arrest and detention on account of their political opinion in Vietnam are identified 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)...”[7]
[5] See for example, Vietnam Human Rights Network, Report on Human Rights in Vietnam 2016 – 2017 pp59- 61
[6] DFAT Country Information Report Vietnam 21 June 2017 at 3.25
[7] UK Home Office, Country Policy and Information Note, Vietnam: Political opponents, Version 2.0, November 2016 at 3.1.1,
The Tribunal has also had regard to the most recent report from the United States Department of State on human rights practices in Vietnam. In that report it indicates that political and religious activists and their families alleged numerous and sometimes severe harassment by public security officials and agents, however it does not indicate that supporters of the old regime/former South Vietnamese government soldiers and their families are targeted.[8]
[8] United States Department of State, Country Reports on Human Rights Practices for 2016, Vietnam, published March 2017,
When this information was discussed at hearing the applicant said he is scared because no one can guarantee 100 per cent that he is not at risk of harm, noting that he will be homeless anyway.
In her written submission to the Department the representative submits that the applicant comes from Ca Mau in South Vietnam whose people were actively persecuted by the then new Communist regime (in 1975) and many fled by boat to [Country 1], [Country 2] and other countries in the region and a large number settled in Australia including many unaccompanied minors (including many of the applicant’s family members). In the protection visa application the applicant states that he fears persecution on return because the Vietnamese government will investigate his family’s past history (as so many of his extended family are in Australia) and because his area – Ca Mau – is an area known to have resisted the Viet Cong.
At hearing the representative submitted that the applicant’s home area – Ca Mau – is seen by the Vietnamese authorities as a ‘hotbed’ of people from the South Vietnamese army and followers of the Cao Dai religion (many who left in large numbers) and therefore monitored heavily. They will start going through the applicant’s family history if he returns, given his uncle was executed by the North Vietnamese communists and their family follows the Cao Dai religion.
The Tribunal has had regard to this submission and the concerns articulated about the applicant returning as someone who originates from Ca Mau in Southern Vietnam and whose uncle was a member of the South Vietnamese army (and killed in the late eighties), among others. Whilst the Tribunal accepts the applicant’s uncle was a member of the South Vietnamese army and was killed by the communists, this occurred around 27 years ago and country information does not indicate that the applicant, as his nephew, would be of ongoing adverse interest to the current Vietnamese authorities for this reason. The Tribunal also notes that nothing has happened to the applicant’s mother who remained in Vietnam because of her brother or any other perceived links to the former regime which does not indicate that the applicant’s family is of adverse interest to the authorities for this reason. The applicant claimed at hearing that his mother has experienced some problems and when pressed for detail he said his mother received a letter around two years ago requesting that she attend the police station. However his oral evidence was vague and lacking details and it was the first time he raised the claim: therefore the Tribunal does not accept his claims in this respect.
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 uncle (and his family’s) involvement with the former South Vietnamese army (and his murder in the late eighties/early nineties) or because the applicant originates from Ca Mau, southern Vietnam. The Tribunal finds the applicant’s fear of persecution on imputed political opinion grounds for these reasons is not well founded.
The Tribunal has considered the submission (supported by country information) about the poor human rights situation in Vietnam (including allegations of police brutality) and accepts that there are incidents of concern. However, on the basis of the DFAT report that 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 and the Tribunal’s findings above and below about the applicant’s profile, the Tribunal does not accept that the applicant will be of particular interest to the authorities on return to Vietnam. It therefore finds remote the chance the applicant would face serious harm in Vietnam as a result of the poor human rights situation, including allegations of police brutality.
Criminal convictions in Australia
The Tribunal has considered the implications of the applicant returning to Vietnam with a criminal record in Australia.
In his oral evidence to the Tribunal the applicant said he was charged and convicted of two counts of murder for offences that took place in 1996 in [Australian city 2]. He was sentenced to 18 years with a non parole period of 14 years and three months. He was released on parole [in] January 2015 into immigration detention, where he currently resides. The applicant was unsure exactly when his sentence ends but thought it was some time in 2018. In a post hearing submission the applicant’s representative attached a copy of the judgement[9] in relation to the applicant’s second murder conviction which indicates that he was sentenced for 10 years commencing [in] January 2009 with a non parole period of six years. His sentence therefore expires [in] January 2019.
[9] [Case citation deleted].
At hearing when asked if he holds any concerns about returning to Vietnam because of his criminal history in Australia, the applicant said from what he knows, the authorities would send him to gaol and that would be the end of him. When asked why, specifically, the applicant said because he fled Vietnam with his uncle and if he is sent back he would no longer be under Australia’s protection (unlike when he travelled back to Vietnam in the past as a permanent resident of Australia). Also because his uncle was executed in the past when the Vietnamese authorities discovered he was involved with the South Vietnamese army. The applicant noted that whilst Vietnam might have change a little bit, it is still run by one party.
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[10].
[10] DFAT Country Information Report Vietnam 21 June 2017 at 4.7
When this information was discussed at hearing the applicant said he has no money which he would need if he was thrown in gaol on return.
The representative said at hearing that the applicant will not be welcomed back by the Vietnamese government – who have the tightest system in the world in terms of surveillance of society – because he came here as a child and murdered people here. She said he has served his time in Australia and it would be a ‘double penalty’ to send him back to Vietnam which would be totally foreign. He will be questioned on return and given he has brought shame on the country for this reason and because he left as a refugee (then failed) as soon as something goes wrong the local authorities will blame him. She noted reports from Amnesty International which indicate that young people have been taken into police custody in Ca Mau. Further she submits that given his past and particular circumstances, whatever anyone wanted to do to him on return, they could do so with impunity.
In his letter to the Tribunal the applicant’s cousin [questioned] how the applicant will survive (on return to Vietnam) carrying the name of a murderer in a country that gives ‘capital penalty’.
The Tribunal has considered these submissions and concerns articulated about what might happen to the applicant on return to Vietnam with a criminal history in Australia. 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.
The Tribunal has considered if 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, noting DFAT’s advice that a person who has 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’. However, as the applicant has served all of the non-parole period of his sentence and has just over a year remaining on his sentence, the Tribunal is of the view that his sentence is almost complete and does not accept that the authorities will pursue him on this basis.
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’[11]. 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 serious crimes in Australia.
[11] VNM 12377 Return of a Vietnamese National with Criminal Conviction, Department of Foreign Affairs and Trade (DFAT), 15 September 2011, CX272689
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.
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 in Vietnam 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.
At hearing the representative submitted that the applicant was very young when he became involved in gangs in Australia (during which time his most serious offences were committed) and some rival gang members were sent back to Ca Mau; that the applicant is concerned some of those may know about his criminal history; and there is a chance that relatives’ of the murder victims are still there. In her written submission provided to the Department the representative outlines the history of the applicant’s involvement with gangs in [Australian city 2], formed in the period when a large number of refugees from Ca Mau/southern Vietnam settled in Australia, including many unaccompanied minors. The leader of one of the gangs – [name deleted] – was from Ca Mau and he used to gather boys predominantly from that region and the leader of another gang – [name deleted] (of which the applicant was a member at the time) – was a Cambodian –Vietnamese national.
In his protection visa application the applicant states that ‘if the local people find out I have been convicted of the murders of 2 other Vietnamese young people in Australia I am very likely to be killed especially if their relatives find out.’
The Tribunal accepts the applicant’s murder victims were originally from Vietnam. At hearing the representative acknowledged that she did not know where the murder victims were from exactly, but noted that nonetheless hardened criminals remain in Ca Mau and the applicant would be extremely vulnerable on return. The Tribunal finds the submission that the applicant’s murder victims are from Ca Mau purely speculative. The Tribunal notes that the applicant has not indicated that his mother who has remained in Ca Mau province has experienced any problems from community member because of his criminal actions in Australia. Furthermore, the Tribunal doubts the Ca Mau community would necessarily know about the applicant’s criminal history in Australia, particularly given their commission was over 20 years ago. However even if they came to know, whilst the Tribunal accepts that the applicant may face a degree of ostracism and discrimination in Vietnam on this basis, it is not satisfied that it would arise to the level of serious or significant harm as defined in the Act.
Inability to subsist
In his oral and written evidence to the Tribunal the applicant said he has nothing in Vietnam, no family (apart from his mother whom he has lost contact with), no support, no place to live and no employment. He will be returning with no money and has no identity or family registration documents.
These concerns are articulated in the support letters[12] provided from the applicant’s relatives, counsellor and community representative in Australia as well as their oral evidence to the Tribunal, in addition to the representative’s submissions. Specifically regarding their concern about the applicant’s ability to survive on return to Vietnam without family or other support, no accommodation, being unfamiliar with the environment there, fears not being employable and not feeling connected there, and given he will be considered an ‘outsider’ or a ‘foreigner’. Also because he has been institutionalised they argued that he needs support.
[12] [Details deleted].
The Tribunal accepts the applicant’s family ties in Vietnam are limited to his mother who he has had no contact with over the past two years: although the Tribunal notes that he has not claimed to be estranged from his mother and the Tribunal is of the view that she could offer some support on his return, as could her niece and nephew whom she currently resides with, for example initial assistance with accommodation. It accepts the applicant is not familiar with Vietnamese society having left there when [age] or [age] although notes his oral evidence that he returned for a number of visits in the past, including in the mid-nineties with his aunt for around five months: although this was many years ago (and prior to his incarceration for over 14 years). The Tribunal accepts the applicant would return with limited money and his work experience has been intermittent. He has also spent many years in institutions (prison and detention) in Australia. It accepts that given these considerations, combined with the fact that he has not returned to his home country for around 17 years and apart from his mother, all of his family members reside in Australia (including his daughter), it will be difficult for him to adjust to life in Vietnam. 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 criminal history, the Tribunal doubts whether they would even come to know these facts. If they do, as found above, 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.
The Tribunal also notes the applicant’s evidence that he has some work experience in Australia, as [an occupation]. It notes as well that during a consultation with a mental health nurse on 29 May 2017 (as set out in the IHMS records provided) it is stated that the applicant has gained qualifications in Australia in [trade work] but worries that this will not get him work in Vietnam. Although the Tribunal accepts it may be difficult for the applicant to obtain employment on return to Vietnam, given these considerations the Tribunal is of the view that 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 because of his personal history.
The Tribunal also notes the applicant speaks Vietnamese. The applicant submits that his Vietnamese is not as good as his English, which the Tribunal accepts. However it does not consider that will prevent him from obtaining work in areas which he has experience as set out above.
The Tribunal also notes the applicant has significant support among his relatives in Australia, some of whom provided written and oral evidence to the Tribunal promising support on his release from prison/detention such as accommodation and is of the view that they would be willing to support him, at least initially, on his return to Vietnam.
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 submits that because the applicant originates from Ca Mau – considered a ‘hotbed’ of people linked to former regime – the authorities will not give him any identity documents or household registration (he will be considered a foreigner). 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.
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.[13]
[13]‘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;
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.[14]
[14]‘Vietnam: VNM42545 – Household Registration – Returnees – Criminal Records’, Country of Origin Information Section (COIS), 5 August 2015, CRAD81550530, Question 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.[15] 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[16]
[15] National Offender Management Service and Praxis Community Projects, 2017, Returning to Vietnam, CISEDB50AD157, pp.2-3
[16] Op cit
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.[17]
[17]‘Vietnam’s Household Registration System’, World Bank Group & Vietnam Academy of Social Sciences, June 2016, CIS38A80121252, p.3
The same report states that in respect to temporary residence registration:
Ho Khau Qualitative Study (HKQS)[18] 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.[19]
[18] Ibid, pp.8-9
[19] Ibid,p.11
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.’[20]
[20] Ibid,p.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.
Country 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 has found the applicant’s relatives in Australia have indicated their willingness to support him in the future and on this basis the Tribunal is satisfied that his relatives 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.
The applicant claims he has never obtained family registration in Vietnam. 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.
The Tribunal has considered if the applicant was unable to access basic services prior to obtaining household registration whether that could amount to serious or significant harm. However, for reasons above the Tribunal is satisfied that he would be financially supported if required at least initially on return by his relatives in Australia and his mother (with the support of her niece and nephew whom she resides with) may be in a position to help him out as well. Furthermore, the Tribunal does not agree that the applicant, who has had some work experience in Australia, would be unable to get a job on return to Vietnam. 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
The Tribunal has considered if 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.
At hearing the applicant said because he fled Vietnam, he will be classified as someone who betrayed the government, even 20 years or more later. It is what the Vietnamese government does behind the scenes that concern him the most. As well, he has no money which he would need if thrown in gaol because for the authorities it is all about money.
In their oral evidence to the Tribunal [Ms C] and [another person] said it would be very difficult for the applicant on return to Vietnam because, having escaped Vietnam (and following the Cao Dai religion, discussed separately below), he will be considered a traitor and anti-Communist by the authorities. As a result they would make his life difficult. [Ms A] said in her letter to the Tribunal that the applicant has spoken about his fears on returning to Vietnam given he fled as a child and he would be considered a traitor by the Vietnamese government, would be targeted and likely jailed for no reason.
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’.[21]
[21] DFAT Country Information Report Vietnam, 21 June 2017 at 5.15
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[22].
[22] DFAT Country Information Report Vietnam, 21 June 2017 at 5.21
At hearing the representative said that the Australian government turned around boats carrying Vietnamese to Vietnam (as reported in the media, some articles have been provided to the Tribunal). She said some were arrested on return, some are still in gaol, some have disappeared, some women and children escaped again and have been accepted for resettlement by UNHCR and sent to Canada. She disputed that the government would take them back, welcome them, and forgive them for the crime of escaping Vietnam, no matter how long ago. She argued that the Vietnamese government does not like anyone who raises a dissenting voice and that leaving by boat is a clear sign of dissent. As well, the representative said she has interviewed returnees deported from Australia back to Ca Mau who report being under police surveillance on return, and questioned as to why they had returned. She said they were not issued identity documents and were restricted from travelling outside the town area. Country information including from Amnesty International indicates that without household registration he would not be able to live there or travel. Therefore if the government fail to issue the applicant an identity card or documents that require him to stay in one area, he will be virtually under house arrest. He will have no right to live in Saigon and will not be able to get any assistance.
[Ms B] told the Tribunal that through her work with [Vietnamese Community Organisation 1] [State 2 Chapter], she considers the human rights situation in Vietnam is worsening, that Vietnam is not safe for someone like the applicant who, having fled the country is already considered as having betrayed his country and given his criminal record is likely to face problems with the authorities either at the airport or the local authorities. In her letter to the Tribunal she spoke of a worsening human rights situation in Vietnam, including curtailing of freedom of expression, religion, assembly of association and protection under the law, with the introduction and application of vague laws[23] which, she argued, has seen many people captured, abused and receive harsh jail terms in Vietnam. As well, she submitted that she is aware of cases of several people on the boats intercepted by Australia in April and July 2015 who faced gaol terms after being deported back to Vietnam and it is clear that anyone in the applicant’s situation or in the case of those people on these boats, their life would not be the same once they decided to leave the country illegally. To support her submission that anyone in Vietnam who is considered a threat to the Communist Party is at risk [Ms B] submitted (via the representative) a number of supporting documents (set out below in relation to the applicant’s religious oppression claims).
[23] Such as Penal Code 88 conducting propaganda against the state, 245: Public destruction, 257: Opposing government officials or 258: abusing the rights to democracy and freedom to infringe upon the interests of the state.
The Tribunal has had regard to the representative’s and [Ms B]’s submission (and relevant country information) about the treatment of returnees, including failed asylum seekers. Having regard to the media articles provided about Vietnamese asylum seekers intercepted by the Australian navy and returned to Vietnam in 2015 as referenced by the representative and [Ms B], it appears that they were charged on return (and faced possibly lengthy prison sentences) for helping to organise the ‘illegal’ departures to Australia. In this respect 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.’[24] In the applicant’s case the Tribunal does not accept that he would be considered a people-smuggler given the circumstances of his departure from Vietnam in the early nineties (as an [age] or [age] year old), around 27 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.
[24] Ibid at 5.17
For these reasons, including the 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 reason 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
As discussed at hearing, having departed Vietnam by boat in the early nineties 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[25].
[25] DFAT Country Information Report Vietnam 21 June 2017 at 5.16 and 5.17
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. As well, given the law is not discriminatory, it does not satisfy s.5J(4)(c) that provides that persecution must involve systematic and discriminatory conduct.
At hearing (as mentioned) the applicant said because he fled Vietnam, he will classified as someone who betrayed the government, even 20 years or more later. Of most concern is what the Vietnamese government does behind the scenes. As well, he has no money which he would need if thrown in prison.
At hearing the representative submitted that if the applicant returns to Vietnam he has no future; he will be questioned on return; he left as a refugee then failed; he has brought shame upon his country; and although he might be able to stay in the village but the minute something goes wrong the local authorities will blame him. She argued that it will be a hostile environment with no one to protect him and the Vietnamese government will not protect him because of his family history. All of this will come into play if he returns as well as his religion (discussed below).
In her written submission to the Department the representative cited paragraph [18] of BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183 about the applicant’s claims that may give rise to international non refoulement obligations. This includes that because the applicant came to Australia as a refugee, he is afraid if he returns he will be seen as someone who has betrayed Vietnam by fleeing; also because of his criminal history in Australia; that his then representative stated that as a person who previously fled Vietnam illegally and was a recognised refugee, the applicant would be perceived by the Vietnamese authorities as a person who opposes the government and that such persons are likely to face ill treatment amounting to persecution in Vietnam; and she stated the continued arrival of asylum seekers by boat from Vietnam demonstrates that the fears which caused him and his family to leave Vietnam over 20 years ago are still current.
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. For reasons above the Tribunal is satisfied he has the support of relatives in Australia who 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.
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.
Whilst the Tribunal accepts that the applicant was accepted as a refugee in Australia in 1993, and accepts the Vietnamese authorities may become aware of that fact, 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 refugee who was resettled in Australia.
Cao Dai religion
At the Tribunal hearing, after hearing from a number of witnesses who indicated their concern about restrictions on practicing their (Cao Dai) religion in Vietnam, the applicant indicated that he is also an adherent to the Cao Dai religion. He prays and wears jade around his neck. His mother and all of his relatives on his mother’s side follow that religion as did his father before he became a monk. When asked if he would be able to practice his religion on return to Vietnam, the applicant said he did not think so because the Vietnamese government pushes people to practice their religion underground and there are no human rights or freedom of speech.
In her oral evidence to the Tribunal [Ms B], President of the [Vietnamese Community Organisation 1], [State 2] chapter, spoke of her concern about the introduction of a new law on Belief and Religion due to take effect in January 2018 which she submitted, will result in minor religions facing a lot of oppression and suppression in Vietnam. This may affect the applicant because of his family linkages to the Cao Dai religion, she argued. Similar concerns were raised by other witnesses at hearing.
After the hearing the representative provided a number of documents about religious oppression in Vietnam (among other things) which had been provided by [Ms B]. These included a copy of a submission from [Vietnamese Community Organisation 1] to the 14th Australia-Vietnam Human Rights dialogue (7 July 2017) about the human rights situation in Vietnam and recommendations to Australian government. Included in the brief were concerns about violations against freedom of religion, and harassment of followers of the Hoa Hao Buddhist faith, Catholics and United Buddhist Church of Vietnam. With respect to the Cao Dai faith it is stated:
In March 2016, officials attempted to seize the An Ninh Tay Cao Dai Temple in Long An Province. They locked the doors and demanded church officials abandon the temple. Local officials have for years tried to pressure them into joining the government-sanctioned Cao Dai Church.
In August 2016, Cao Dai Popular Council Representative Nguyen Van Phuc was prevented from leaving the country to attend a conference.
The Vietnamese government continues to use thug like tactics, bribery and coercion and to plant people into religions like Cao Dai, to create infighting and disunity. The goal being to create permanent destabilisation amongst their followers. This is a major restriction of freedom of religion and belief which is contrary to Article 18 of the International Covenant on Civil and Political Rights.
Other documents submitted by the representative to the Tribunal post hearing (forwarded from [Ms B]) regarding religious oppression in Vietnam were:
·‘Human Rights and Religious oppression in Vietnam’, Information Briefing 25 May 2017 [Vietnamese Community Organisation 1] – [State 2] chapter: update to parliament about worsening human rights situation and religious oppression in Vietnam since environmental disaster in Vung Ang Ha Tinh Province caused by Formosa Ha Tinh Steel Company in April 2016
·[Vietnamese Community Organisation 1] submission ‘Inquiry into the status of the human right to freedom of religion or belief’ July 2017
·Open letter regarding new legislation on religion and belief, which is passed and will take effect in January 2018, and a submission from Human Rights Watch with respect to the draft legislation
·Extract from United States Commission on International Religious Freedom annual report 2017 (and a copy of the full report)
Despite introducing this claim for the first time at the Tribunal hearing (the applicant said he simply forgot to tell the Department), the Tribunal is willing to accept the applicant follows the Cao Dai religion, as does his mother and many of his maternal relatives. Country information indicates that Cao Dai is a syncretistic Vietnamese religious movement that incorporates aspects of Buddhism, Taoism, Confucianism and even Catholicism that was founded in 1926 in Vietnam and has its headquarters in Tay Ninh, a small city about 60 miles northwest of Ho Chi Minh City[26]. Some reports indicate it has five million adherents.[27]
[26]
[27] Gillet, Kit, The New York Times, ‘Where the Faithful Worship Among the Tourists’, May 11, 2012, Mayhttp://
The Tribunal acknowledges country information indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief as codified in the new law on Belief and Religion as submitted. However, as discussed at hearing, whilst country information indicates a level of restriction on religious freedom in Vietnam, religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the CPV and its policies.[28] As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent upon their relationship with the government and those groups the government continued to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism[29]. DFAT assesses that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from the authorities[30]. The applicant did not claim to be involved in activities for Cao Dao rights or that he would be on return and expressed no intention of getting involved in religious activism on return to Vietnam. There is no indication that Cao Dai followers are persecuted for practising their faith per se. Given these considerations the Tribunal is satisfied the applicant will be able to practice his Cao Dai religion as he claims he has in the past – by praying and wearing a jade necklace – and finds the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to Vietnam for reasons of his Cao Dai religion or any imputed political opinion based on his Cao Dai religion.
Other matters:
[28] DFAT Country Information Report Vietnam, 21 June 2017 at 3.8, 3.10, 3.13 and 3.25
[29] DFAT Country Information Report Vietnam, 21 June 2017 at 3.8
[30] Ibid at 3.19
The Tribunal notes that in her oral evidence to the Tribunal and written submission to the Department the representative argues that, in addition to assessing whether or not Australia has non-refoulement obligations in respect of the applicant, the Tribunal must also consider the prospect of indefinite detention noting that in he will not be able to return to Vietnam in the event his review application is unsuccessful because he has no identity card, family registration or Vietnamese passport. She refers to the findings of Bromberg J in BMX15 v Minister for Immigration and Border Protection that the Minister was not required to consider the prospect of the applicant’s indefinite detention as he remained entitled to apply for a protection visa. At hearing the representative argued that the question as to whether or not the applicant could be sent back to Vietnam remains unsolved.
Having regard to BMX15 v Minister for Immigration and Border Protection, which was an appeal by the applicant of the Minister’s decision not to revoke his visa cancellation decision, Bromberg J found, among other things, that the applicant remained entitled to apply for a protection visa, which he subsequently did and is the subject of this review. Bromberg J also stated at [85] that
It is clear that on the facts of this case and the principles enunciated in MIBP v Le, that the applicant may apply for a protection visa and that a consideration of that application must involve regard being paid to the prospect of indefinite detention if the application for that visa is refused.
However, the question of whether or not the applicant faces the prospect of indefinite detention in Australia if his visa is refused is not a criterion in relation to the applicant’s protection visa and therefore the Tribunal is not required to consider it. Such a consideration is relevant when considering discretionary factors under Departmental policy to consider in relation to a visa cancellation decision (with respect to taking into account the legal consequences of the cancellation decision), not a criteria for a protection visa.
The Tribunal also notes the applicant’s written and oral evidence includes that he is deeply remorseful for his past crimes, had an impeccable prison record - evidenced by being granted parole on his earliest eligibility date (among other things) - and has made significant progress in terms of his personal development. This sentiment is reflected in the letters of support provided from the applicant’s relatives in Australia, representative from the Vietnamese community and his counsellor at [Social Welfare Organisation 1] as well as the oral evidence of the witnesses at hearing who attested to the applicant’s remorse, his good behaviour subsequently, and requested in this light for leniency and/or a second chance. Some witnesses, as well as the representative in her submission, referred to the applicant’s difficult circumstances leaving Vietnam without his parents when young, and whilst not justifying his crimes, indicated this vulnerability, combined with being under the influence of a particularly controlling gang leader at the time (when the applicant was only [age]) contributed to his offences (which was also reflected in the judge’s sentencing [comments]. Tribunal).e Tribunal has no reason to doubt these submissions and claims. However, as discussed at hearing, the applicant’s experiences in Australia including his rehabilitation and significant progress, are not directly relevant to whether or not he faces a real chance of persecution on return to Vietnam and do not alter the findings the Tribunal has made above in this respect.
Conclusion – refugee grounds
Having considered the applicant’s claims individually and cumulatively – that is as someone with family links to the former South Vietnamese government, his criminal convictions in Australia, his mental health status, being a failed asylum seeker who departed the country illegally (and was a recognised refugee), his ability to subsist, and his Cao Dai religion - 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.
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
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.
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 (and recognised refugee), given the circumstances of his departure from Vietnam, because he would be unable to subsist, or his Cao Dai religion. 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].
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 relatives in Australia.
The Tribunal has considered the applicant’s concerns about his particular vulnerabilities on return including lack of contact and family support in his home country, limited financial resources, and concerns about gaining employment. It accepts his claims in this regard 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 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. 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 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)).
The Tribunal has considered if the act of removing the applicant from Australia to Vietnam away from his daughter (even though she is now an adult) would meet the definition of ‘significant harm’ in s.36(2)(aa) and s.5(1). The Tribunal does not accept the act of returning the applicant to Vietnam will satisfy the definition of 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment', or 'torture'. The Federal Court found that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[36]
[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 (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm.
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
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.36(2)(a).
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).
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nicole Burns
MemberATTACHMENT - 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.
…
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:
‘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), CIS28128
- AGLC
- 1710943 (Refugee) [2017] AATA 3139
- Case
- [2017] AATA 3139
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution or faced significant harm if returned to Vietnam. This involved considering both the refugee criterion under s.36(2)(a) and the complementary protection criterion under s.36(2)(aa) of the *Migration Act 1958* (Cth). The Tribunal was required to assess the applicant's claims of religious oppression within the context of his criminal history and his status as a Vietnamese national.
The Tribunal considered Ministerial Direction No. 56, relevant policy guidelines, and country information. It found that the applicant did not satisfy the refugee criterion. Furthermore, the Tribunal determined that the applicant did not meet the complementary protection criterion, as there were no substantial grounds to believe that his removal from Australia would result in a real risk of significant harm. The Tribunal noted that the applicant did not satisfy the criterion under s.36(2) as a member of the same family unit as a person who holds a protection visa.
Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision. Mandatory considerations In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground According to information on the Departmental and Tribunal file and the applicant’s oral evidence to the Tribunal, the applicant was born in [year] - making him [age] years old – in Ca Mau Province, Southern Vietnam. He left Vietnam with his uncle in the early nineties, spent time in [Country 1] and [Country 2] before being granted a Class BF Subclass 200 Refugee (Permanent) visa and arriving in Australia on [date] May 1993 with his uncle and his uncle’s family. On [date] July 2000 he was granted a Class BB Subclass 155 Resident Return (Permanent) visa. The applicant travelled back to Vietnam on three occasions and on return to Australia after the third visit on [date] October 2000 he was arrested at [Australian city 1] airport. On [date] May 2002 the applicant was sentenced [to] 14 years’ imprisonment, with a non-parole period of nine years, for a conviction of murder, and 12 months’ imprisonment for a conviction of unlawful imprisonment. On [date] June 2002, the applicant was sentenced to a further 10 years’ imprisonment for another conviction of murder. On [date] January 2015 his permanent residency (Subclass 155) visa was cancelled on character grounds and a decision was made not to revoke the original cancellation decision on 21 June 2015. The applicant appealed this decision in the Federal Court of Australia (FCA) and on 5 October 2016 the judge in that case dismissed the appeal.[1] [1] BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183. [In] January 2015 the applicant was granted parole and released into immigration detention at [Immigration Detention Centre 2]. He currently resides in immigration detention [in Immigration Detention Centre 1].