1710986 (Refugee)

1710986 (Refugee) [2019] AATA 6698 (25 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710986
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Justin Meyer
DATE:25 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 November 2019 at 2:16pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – Buddhist – imputed political opinion – avoiding compulsory military service – particular social group – failed asylum seeker – education – employment – re-education camp – fear of arrest – previous illegal departure – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the 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 16 September 2014 and the delegate refused to grant the visa on 8 May 2017.
The applicant appeared before the Tribunal on 23 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in Vietnam and, if not, whether there are 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 that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claimed in his protection application to the department that:
·He left Vietnam to study in Australia and avoid compulsory military service. He also felt his he and his family had been discriminated against by people around them. He claims his family escaped from Vietnam in [year]. His family followed the [advice] to repatriate to Vietnam after spending 2 years in refugee camp in [Country 1];
·He experienced harm in Vietnam. He was told about many people who never returned to their family from re-education camp. He claims he and his family were under supervision by the local government after they had completed their political. classes. They did not have equal life; did not find any position in tertiary education or employment. He claims his family earned a daily living by small-scale trading which was just enough to maintain their low income living;
·If returned to Vietnam, he will be sent to re-education camp by Vietnamese authorities for refusing to join military service. He is in the age group of 18-45 years old. People from that age group are required to attend the military training. On numerous occasions he was asked to join the army. Since he refused, he was given several warnings;
·He claims some of his friends who returned to Vietnam have experience the discrimination against them. Some of them were placed in the re-education camp for some years;
·He further claims that there is no freedom of speech or political opinion. He does not like the current regime and he wishes it can be changed. He thinks he would be arrested and imprisoned due to his open opinion and actions;
·He further claims there is no democracy and freedom of religion in Vietnam. It is a critical offence to anything negative about Vietnamese government party or authorities. Police in Vietnam usually tortures arrested people who wants a life of freedom and democracy.
I describe his further written and oral claims as falling under these headings:
·Compulsory military service will lead to him suffering harm.
·He will be placed into a re-education camp if returned to Vietnam.
·He is economically disadvantaged due to his anti-government status and his returned refugee from [Country 1] (or child of such a refugee) status.
·He would be arrested and imprisoned due to his open opinions and actions.
·His religion or practice of religion or religions.
I will deal with each of these in order.
Compulsory military service will lead to him suffering harm.
The applicant wrote that he left Vietnam when he was [age] years old, which is under the age range for compulsory service. However, when he came back at the age of [age], he was not stopped by the immigration authorities because by that time he was holding valid Australian student visa.
His family has constantly received a Mandatory Report Letter from the police. The purpose is to ascertain whether he was involved in any ‘reactionary organisation’.
He does not risk to join and be involved in any reactionary activities or organisations that relate to politics in Vietnam as it directly affects the safety of his family who still remain in Vietnam.
He always fears for the safety of his family in Vietnam as the oppression from government had happened before and he does not any reason to believe that it will not happen again.
In the hearing the applicant made the following remarks:
His desire to avoid military service was part of the reason why he cannot go back to Vietnam.
When he returned to Vietnam in 2019 he was not bothered anymore about military service. He had been an overseas student.
I asked how long military service would last for, to which the applicant replied three years.
I put that even if he had to go into the military it might be inconvenient and unpleasant, but asked if it would be any more than that for him. He said that in addition if he were in Vietnam he could not get a good job there.
The applicant here did not pursue his claims about being conscripted with energy and moved on to the job situation.
In his oral evidence he claimed that the last time he was called up into service was at the age of [age] when he was in Australia studying. He said that he had friends that went into a re-education camp because of failure to cooperate with being called up.
He said he had never been given a warning – but that it was directed against his parents. He said this was not a direct warning. He said they were invited to the police station and “the police asked about me.” The last time this had happened was two years ago. This was in inquiries about the family’s household registration.
I note from DFAT’s most recent Vietnam report:
Military
5.3 The Vietnam People’s Army (Quân đội nhân dân) includes a large ground force component (estimated at 412,000 personnel). In practice, the other services are subordinate to the army, which include the People’s Navy and Naval Infantry (estimated at 40,000), the People’s Air Force and Air Defence Force (estimated at 30,000) and the Border Defence Command (estimated at 40,000). Military service of 18-24 months is compulsory for males aged 18-25 years, and females can volunteer for service. In practice, however, DFAT understands that all males must register with the military, but very few are called up to serve for the full military service period. There are exemptions granted on several grounds, including for university students and people employed in certain professions. [1]
[1] DFAT Country Information Report Vietnam 21 June 2017
As the applicant is now older than the military service range of 18-25 years (he is [age] years old), I have no reason to find that he is liable to be called up. I am not in possession of country information which suggests that he would be put into service as an older male who did not have a reason to not serve when younger. Even if this is a practice, he would have reasonable justification having been a student and overseas during the relevant age span. His lack of vigour in pursuing the claim in the hearing also weighs against the claim. He is not a conscientious objector, he merely does not wish to serve. I find he is not at risk in this regard.
He will be placed into a re-education camp if returned to Vietnam
The main claim about being placed into a re-education camp revolved around it being punishment for avoiding military service. As I have found that a military service issue is not a prospect, this aspect of the claim does not lead to a finding of a well-founded fear of persecution.
The applicant mentioned that his father was once placed in a re-education camp. It does not flow that, decades later, the applicant will therefore suffer the same fate.
Re-education camps appear to have disappeared or largely disappeared from the scene in Vietnam.
The applicant claimed some of his friends who returned to Vietnam have experience the discrimination against them. Some of them were placed in the re-education camp for some years, he wrote.
I note that country information from the US State Department in 2016 (as contained in the decision record of the department submitted to the Tribunal) states:
Re-education camps
“Re-education camps" largely ceased operation in Vietnam in die 1990s although mechanisms still remain for detaining and. silencing political dissidents. Although some human rights organisations still refer to "re-education camps" most agree that these specifically designated camps are no longer in existence.' The regime does, however, deploy a range of tactics to detain, suppress and silence political dissidents such as house arrest, administrative detention or prison sentences and the regular movement of dissidents throughout the detention network to isolate them from family and support networks and other detainees.[2]
[2] Vietnam: The Silencing of Dissent. Vol. 12, No. 1(c). Human Rights Watch May, 2000, p.5 (sourced from UNHCR Retworld) C1912687; Country Reports an Human Rights Practices 2015 - Vietnam, US Department of State,13 April 2016, Section 1(e) 0009513E926333
Even taking the claim at its highest (that there is a re-education style approach to dissenters or troublemakers), the lack of detail of the friends’ fate, the reasons for their problems and how the applicant is like them, mitigate against his claims. It appears that even if his friends were given re-education it appears to be for military draft evasion or refusal reasons, which I have already found are not a risk for the applicant.
He is economically disadvantaged due to his anti-government status and his returned refugee from [Country 1] (or child of such a refugee) status.
The applicant wrote that after coming back to Vietnam, his family struggled to blend into the community. The government constantly created difficulties for his family. His parents were required to present to the police to report weekly for years up until now.
The government has always put pressure on his family. None of his family members could be employed by any government-owned companies.
Local police have been questioned the applicant’s father about his escape from forced labour detention, what had happened in the refugee camp, and whether his father was involved in any organisation against the Vietnamese government.
In order to raise the applicant, his family had been struggled to work multiple jobs and faced pressure from the government. In 1996, his grandmother sold her house to give his parents money to start a business. Because his parents were refugees, they were not allowed to own a business. This is one of many dilemmas that the government has created to directly and indirectly punish people seeking refuge and parents suffered. With many years working hard and saving up, they were able to fulfill a family dream and send the applicant to study abroad. He chose Australia in 2007.
In the hearing the applicant said that his parents had crossed to [Country 1] to escape Vietnam. The applicant was born in [Country 1]. Eventually the family had to return.
The police constantly interrogated his family about what happened in the camp and when the applicant had left for Australia when he was coming back and why he was away.
Returnees from the refugee camp were not allowed to do business or do proper work. Police asked if the applicant had joined any political party while overseas.
The applicant said that he was behind in school when young and could not join the school he wanted.
I challenged the applicant as to whether he could work in the private sector and he said he could do so without problems. But he could not start a business.
I asked the applicant why he would be discriminated against by the government as he was a [young age] when he returned to Vietnam. He said the government was attacking people even people from long ago such as his father. He was born into such a family.
I consider the status of returnees. This in the context of the applicant returning when [age] years old and if he were to return now or in the reasonably foreseeable future.
DFAT’s recent report states:
TREATMENT OF RETURNEES
5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
5.16 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 VND2 million and VND10 million (approximately AUD120-600) 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 VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
5.17 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 illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016. [3]
[3] DFAT Country Information Report Vietnam 21 June 2017
I accept that the applicant’s family are viewed negatively by authorities because they left and returned in the 1980s and 1990s. They face closer scrutiny. I am not prepared to accept though that this discrimination cumulatively amounts to persecution in this regard. They subsist as would the applicant should he return. He has agreed that he could be in the private sector. Certain pathways to him would be closed but not all or most chances in life. Police or other authorities have asked about him and there have been government visits and checks as evidenced in official documents submitted. He prefers the freedom of the Australian lifestyle when compared to Vietnam. But the claim does not rise higher than this.
He would be arrested and imprisoned due to his open opinions and actions.
The applicant has anti-government opinions – as indicated in his written submission and oral evidence. He notes in writing though that:
“even though I am in Australia, I do not risk to join and involve in any reactionary activities or organisation that related to politic in Vietnam as it directly affects the safety of my family who still remains in Vietnam. I always fear for the safety of my family in Vietnam as the oppression from government had happened before and I do not any reason to believe that it will not happen again.”
DFAT in its 2017 reports notes about dissenting opinion:
Leaders and Organisers
3.25 Political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities; however, the treatment from authorities generally depends on the individual’s level of involvement. The US Department of State’s Country Report on Human Rights Practices for 2015 highlighted the arrest and detention of former prisoner of conscience and democracy activist Tran Anh Kim, formally charged in October 2015 under Article 79 of the Penal Code (seeking to overthrow the government). Police in Thai Binh Province reportedly detained Kim and his associate Le Thanh Tung on 21 September, ‘the day he had planned to inaugurate a new political organization, National Forces Raising the Democratic Flag.’ On 16 December 2016, Mr Kim and Mr Tung were sentenced at trial to 13 and 12 years in prison respectively. The court also ordered that both men serve four years of house arrest once released from prison.
……….
Supporters and protesters
3.28 Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.
3.29 DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds. [4]
[4] DFAT Country Information Report Vietnam 21 June 2017

By his own evidence the applicant harbours anti-government sentiments but that is all. He has not changed his behaviour – he has always been unwilling to engage in more than quiet or low-level criticism.
I find that this is unlikely to attract attention and create a risk for him, and it is difficult to see an eventuality where the applicant takes a different approach on expressing his views. He may feel intimated because he is a mere supporter, but on the country information persecution is not something he faces. He was unspecific about his issues with the Vietnam regime. He did not cite relevant issues in Vietnamese society in a deeper sense, and his knowledge levels were not displayed to be high. If the impulse to dissent were higher it follows that he would take a more proactive approach to his protection claim. He is an educated person and he has resided in Australia on the strength of student and unsuccessful partner applications. These were his bases for staying in Australia for several years. The Tribunal does not detect an impulse to express his views or live out his beliefs, and whilst it is wary of prescribing a level of enthusiasm to meet criteria, the protection application was not his first or second port of call in trying to live in Australia. Given the other evidence the Tribunal concludes that he does not have a strong impulse of political expression or regime criticism and does not accept his claims.
He said that in response to the country information he did not experience an issue as a returnee directly. Vietnam wanted to show the world that there was an agreement on returnees but behind the scenes there is no guarantee. It is just for show. The applicant has not specified anything more than this and I cannot find that he will be harmed on this information for this reason.
His religion or practice of religion or religions
The applicant wrote that his father’s side of the family is Christian. His mother’s side of family believes in Buddhism and as he has spent a lot of time with his mother’s side he also believes in Buddhism. However, freedom of religion is always controlled and oppressed by Communist Party of Vietnam. The lived experienced is that his father was tortured and forced to work, put in jail because of his beliefs. In addition, the majority of Vietnamese people are not allowed to have a religion.
The applicant said in oral evidence that in [year] the government destroyed a church where his father lived. His father was in a demonstration and all in it were arrested and put into jail. They were given re-education. The applicant’s father was in jail for two years. He then escaped and went to [Country 1]. The applicant said that he grew up with this and his father often told him about what had happened to him. I asked if this had caused him any other issues and he indicated that this was the extent of the problems he had suffered in this regard.
He added in oral evidence that he went to Vietnam in 2010 to visit family and see how things were. It was not a place for him. I asked if he suffered any problems to which the applicant said that Vietnam was totally different to his lifestyle and thinking. He saw bad things and did not want to come back.
His father is Christian and his mother Buddhist. His father went regularly to a Catholic church.
I asked if the applicant’s father had experience difficulties with his faith since the applicant’s trip in 2010. He said no, but ‘they’ keep an eye on him. The government checks on his father’s relationships he said. His father had not been to demonstrations. He goes regularly to church and he wants to keep his family safe.
I asked if the applicant’s mother had difficulty in her Buddhist practice. He said the government disapproved of religious activity and wanted loyalty to the communist party. Their claim of freedom of worship is false.
His mother visits a Buddhist temple and has a strong faith. She is not a Hòa Hảo Buddhist, and is a more a mainline Buddhist. She goes to Buddhist temple.
The applicant’s religious beliefs were that although he went to church at times and prayed, he sticks with his mother’s side and he believes in Buddhism.
He added that affected by both faiths and he is ‘interfaith’ and believes all religion is good.
He practised religion in Australia by going to the [named] Buddhist temple. In the last 12 months he went to the temple every Sunday.
He had also been to church with Catholic friends. Church he attended on special occasions.
I asked the applicant how he identified and he said that on the Vietnam ID card there was no entry about religion.
I pointed out that his father is a Catholic and asked if he would be identified as one. He said that he would be observed and they would see if he spent more time in church or temple.
I asked about his submission of material to the Tribunal of photographs of people protesting holding signs and placards. The photographs were accompanied by narrative regarding acquisition by government of [a religious building] and persecution of protesters.
These photographs and commentary were confirmed not to be evidence submitted of the applicant's involvement in any political or religious protest. They do not establish his presence in those activities, nor that of family, and he specifically confirmed this in the hearing.
The most recent DFAT report discusses religion in the following terms:
DEMOGRAPHY
2.7 According to official statistics, 27 per cent of the population, or approximately 24 million people, follow a particular religion or belief in Vietnam, but this does not include those that do not officially declare their faith. Vietnam’s Committee for Religious Affairs (CRA) states that more than half the population follow Mahayana Buddhism, though not strictly practised. Other religions practised include Theravada Buddhism, within the ethnic Khmer group (1.2 per cent of the total population), Roman Catholicism (7 per cent), Cao Dai (2.5 to 4 per cent), Hoa Hao (1.5 to 3 per cent) and Protestantism (1 to 2 per cent). Followers of Islam, Bahai, Hinduism and Church of Jesus Christ of Latter Day Saints (Mormons) comprise less than 2 per cent of the population. Vietnamese public servants must not claim any religious affiliation.
EMPLOYMENT
2.15 The law prohibits discrimination with respect to employment and occupation based on sex, race, disability, social class, marital status, religion, and HIV/AIDS-positive status. The law promotes and encourages the employment of persons with disabilities; however, in practice social and attitudinal barriers exist to varying degrees.
RELIGION
3.6 Article 24 of the Constitution states that all people have the right to freedom of belief and religion, and have the right to follow any religion or to follow no religion. In addition, all religions are equal before the law; the State respects and protects freedom of belief; and ‘no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the laws’. However, as with political opinion, these rights are conditional. The Penal Code 1999 establishes penalties for practices that, in the Government’s view, undermine peace, national independence and unity. The Government’s routine application of these laws in practice leads to limits on religious freedom, particularly with regard to unregistered organisations.
3.7 A new Law on Belief and Religion was passed by the 14th National Assembly (November 2016), providing modest improvements to the restrictive regulatory environment for religious practice. This law replaces the 2004 Ordinance on Religion and Belief (Ordinance 21) and the revised Implementation Decree 92 (promulgated in January 2013). The new law shifts the regulation process in multiple areas (e.g. attendance at seminary, ordination, hiring of clergy) from an approval system to a less burdensome notification system, allowing it to move forward with such activities, without explicit government approval. The amount of time a religious organisation must carry out religious activities as a condition for national-level recognition has been reduced from 23 years to five years.
3.8 The treatment of religious groups varies widely across different areas of the country and is further dependent upon their relationship with the Government. The CPV maintains a strong atheistic stance against religion; however, Vietnam is traditionally a Buddhist country, with more than half of the current population (majority Kinh ethnicity) considering themselves to be adherents of Mahayana Buddhism. According to the US Department of State’s 2016 report on religious freedom, the Government continued to monitor the activities of some religious groups, mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism. Local authorities regularly blocked religious gatherings and temporarily detained members of some unregistered groups, especially in ethnic minority regions. DFAT is also aware of credible reports of local authorities either delaying or denying applications for approval and recognition of religious groups with no reason provided.
CATHOLICS
3.9 Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
3.10 DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.
UNREGISTERED CHURCHES
3.11 Credible in-country contacts and human rights advocates reported that several parishes in remote areas with majority ethnic minority congregations faced difficulty registering churches. Local authorities often ignored, or were unaware of, national laws with respect to church registration. The US Department of State’s international religious freedom report for 2015 reported the case of 22 unregistered Catholic house churches scheduled for demolition in the Central Highlands province of Kon Tum in 2015. The demolition was halted following involvement by the church leadership, after which authorities and the church entered into dialogue regarding construction of new worship facilities.
3.12 In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.
3.13 DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion. [5]
[5] DFAT Country Information Report Vietnam 21 June 2017
This material was discussed with the applicant. He said that religion was allowed but church land was confiscated. If this is challenged people will be persecuted.
When challenged further about how the religious tolerance situation in Vietnam would affect him the applicant said that people with low involvement would be suppressed through the use of gangsters. Little other information was provided.
The Tribunal concludes that the applicant identifies as a Buddhist (like a plurality of Vietnamese people) and practices his faith or is a follower. He has some sympathy for Catholicism and is something of a fellow traveller. He has universalist-type beliefs that all religions are good.
He is likely to be thought of as a Buddhist, or remotely as a nominal Catholic.
Neither he or his family are viewed as or would be viewed as problematic to the authorities or anyone else on the grounds of belief either now or in the reasonably foreseeable future, based on his activities and lower profile.
Findings
I find the applicant is [an age] years old Vietnamese male based on his passport identification.
He came to Australia to study.
His family left Vietnam in the 1980s because they objected to the regime and its actions. The applicant returned at aged [age].
He has not been questioned, arrested or imprisoned or similar. The worst is that inquiries have been made about him when his parents are called in to update their family registration. He has legitimately avoided military service for being overseas during the target age range and for being a student. He does not run a risk now of being called up if returned.
He may be part of a family that the Vietnamese authorities pay some extra attention to because they once fled the country, but no more. He was a very young minor at the time.
He has religious conviction or practice yet would not face harm for being Buddhist or perceived Buddhist or Catholic. He is within the more than half of the population who follow Buddhism, though not strictly, and he is not an activist.
He has latent dislike and opposition to the regime but has not taken action. Past behaviour likely to be a good predictor of future behaviour here and I find that he will not increase his political interest or involvement. I do not find that this is because of fear of future harm, as his political interest and views were general and pursued without intensity.
He may well be denied some jobs in Vietnam but not others, and could work in the private sector. He faces some discrimination on this point, however cumulatively it does not amount to persecution.
It is difficult to see what harm he would face as a failed asylum seeker based on the relevant country information and I find that there is no scenario other than remote one of this occurring for the reasons I have outlined. His delays in applying for protection weighs against his overall claims as described.
The cumulative effect of the applicant’s claims
I have found what is feared by the applicant is not serious harm and therefore not persecution. I have found that the applicant does not face a real chance of persecution. I consider that even when each of his claims are considered cumulatively, I am not satisfied that there is a real chance that, if the applicant were to return to Vietnam, he would face persecution due to these things.
According to section 5H of the act, a person is a refugee if the person is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of his country. A crucial criterion of that definition is the requirement that the applicant have a well-founded fear of persecution. I have found that the applicant does not have a well-founded fear of persecution for any of the reasons claimed, even when those claims are considered cumulatively.
I therefore find that I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
In considering whether the applicant meet the complementary protection criterion under s.36(2)(aa) of the Act, I have considered whether I have 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, I find that Vietnam is the ‘receiving country’ or the purposes of s.5(1).
For the reasons set out above, I have not accepted the applicant’s claims that compulsory military service will lead to him suffering harm, that he will be placed into a re-education camp if returned to Vietnam, that he is economically disadvantaged due to his anti-government status and his returned refugee from [Country 1] (or child of such a refugee) status, that he would be arrested and imprisoned due to his open opinions and actions, his religion or practice of religion or religions, nor have I accepted that there is a real chance that the applicant will be harmed on return.
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.
For the same reasons I do not accept that there is a real risk that the applicant will be harmed on return as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.
I do not accept for the applicant, per the definition in s.36(2A), that:
(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.
I therefore conclude that the possible or hypothetical harms suggested do not meet the definition of ‘significant harm’, even when considered cumulatively with the applicant’s other claims. I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Vietnam, there is a real risk that the applicant will suffer significant harm, even when all of the applicant’s claims are considered cumulatively.
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).
Nor do I accept on the evidence before me that there is a real risk the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of removal to Vietnam. Therefore the applicant does not satisfy the criterion set out in 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).
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. Therefore the applicant does not satisfy the criteria set out in s.36(2)(a) or (aa) for a Protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Justin Meyer
Member

[2019] AATA 6698

25 November 2019

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Immigration

Statutory Interpretation

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