1711360 (Refugee)

1711360 (Refugee) [2020] AATA 5580 (21 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711360
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nicholas McGowan
DATE:21 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made 21 December 2020 at 10:51am
CATCHWORDS
REFUGEE – protection visa – Vietnam– religion – Buddhist – Christian convert – threatened by family’s former business associates – attacked by street gang –mental health issues –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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.
WRITTEN STATEMENT OF DECISION AND REASONS

The applicant applied for the visa on 10 July 2015.
On 8 May 2017 a delegate of the Minister for Immigration and Border Protection decided to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Tribunal for review of the delegate’s refusal decision on 27 May 2017. The applicant was invited to attend a hearing into the review on 29 October 2020.
The applicant is represented in respect to this review.
Protection considerations
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).
As the matters contained in s.36(1A): inclusive of s.36(1B) and s.36(1C), have not been considered by the Department, the Tribunal need not review these criteria. These remain matters for the Minister, should the review be remitted for consideration.
An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), s.36(2)(aa), s.36(2)(b) or s.36(2)(c).
That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion set out in s.36(2)(a); or on other ‘complementary protection’ grounds set out in s.36(2)(aa); or is a member of the same family unit as such a person and that person holds a protection visa of the same class: as set out in s.36(2)(b) or s.36(2)(c).
In this matter, there is no suggestion or evidence that the applicant satisfies ss.36(2)(b) or s.36(2)(c) of the Act. Accordingly, the Tribunal finds the applicant does not satisfy the criterion in s.36(2)(b) or (c) of the Act.
Section 36(2)(a) requires 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.
The applicant claims to be a citizen of Vietnam born [date of birth]. The applicant has provided the Department with a copy of his bio-data page from his Vietnamese national passport issued [in] 2011, expiring [2021], numbered [deleted]. The Department, as evidenced in the Decision record (a copy of which the applicant provided this Tribunal as part of the review application) found previously that there was no evidence before them that the applicant had provided any bogus documents as defined in s.5(1) of the Act. The Department, hence, accepted the claimed identity of the applicant as stated by him in his national passport. The Tribunal notes the Department also undertook usual checks of relevant systems which revealed no information that raised any concern that the applicant’s identity was false. The Tribunal has turned its mind to this matter, and in the absence of any evidence before the Tribunal, finds that for the purposes of this review, the applicant’s nationality and identity are as declared by him, and which is consistent with the information contained in his Vietnamese national [passport].
Given the above, the Tribunal finds that the applicant is a citizen of Vietnam, that Vietnam is his receiving country for the purposes of both the ‘refugee’ and ‘complementary protection’ considerations, and that he is outside his country of nationality for the purposes of s.5H(1)(a) of the Act: definition of ‘receiving country’. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act. Accordingly, the Tribunal finds s.36(3) of the Act does not apply in this matter. In addition, the Tribunal finds that s.36(4), s.36(5), s.36(5A), s.36(6) and s.36(7) are not applicable in this matter. Therefore, the Tribunal must consider the remaining criteria set out in s.36(2)(a), s.36(2)(aa), having also taken into consideration 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 s.36(2A) and s.36(2B). The Tribunal notes s.36(2C) pertains to circumstances in which an applicant is taken not to satisfy the criterion in s.36(2)(aa), though as the Minister’s delegate has made no decision in respect to these criteria, the Tribunal will confine its consideration to the criteria as set out above.
Protection claims
The applicant’s claims for protection, and supporting evidence and arguments are contained in the Departmental file [number deleted].
The applicant wrote in his protection visa application, lodged 10 July 2015, in response to the proposition ‘I am seeking protection in Australia so that I do not have to return to [name of country or countries…):
Vietnam to face with threats harms and deadly violence together with my family from illegal, corrupted, and gangs.
In response to the question, ‘Why did you leave that country(s)? the applicant wrote:
I came to Australia to study [with] financial support of my family and relatives, somehow, due to political disputes between China and Vietnam (2012-2013), my family and partner business went broke leading to bankruptcy of my family. Business partners angry of the unfortunate situation in which everyone lost money and accusing my family of inability in business, they hired gangs accusing my family who leave home and went to hide in country with no assets or income. I left Vietnam to study, but now with no financial support I have to stop studying.
In response to the question, ‘What do you think will happen to you if you return to that country(s)?’, the applicant wrote:
I am surely face with deadly harms caused by unknown people or terrorist gangs paid by previous business partners, Vietnamese authorities are unable to provide effective protection due to their gangs expected blow of attacks on people for money. I am the eldest son of my family of four children, by tradition I carry on the family name. My Mother by secret liaison, insist that I could not returned home where gangs always watching around.
In response to the question, ‘Did you experience harm in that country?’, the applicant selected the ‘box’ marked ‘yes’ and wrote:
I was assaulted on street by gangs asking for money. They think I am rich due to my position of director of business company.
In response to the question, ‘Did you seek help within the country(s) after the harm?’, the applicant selected the ‘box’ marked ‘No’, and wrote:
It is no use to seek help, the gang’s people are in such big organisation who operate in all over the country. They bribe local authority to keep closed eyes on their criminal activities. My family and myself keep quiet about harms for fear of revenge.
In response to the question of whether the applicant had moved, or tried to move to another part of that country(s), the applicant selected the ‘box’ marked ‘No’, and wrote:
I was waiting for the student visa from Australian Embassy in Vietnam – Ho Chi Minh, to be delivered to my home address, where my family still handle small business.
In response to the question of whether he thought that he would be harmed or mistreated upon return to [Vietnam], the applicant selected the ‘box’ marked ‘Yes’, and wrote:
I was assaulted on street before going to Australia. Now, I think undoubtedly I will be harmed by gangs if I returned. They are paid by business partners to attack or kill me by knife or guns.
In response to the question of whether the applicant thought the authorities of [Vietnam] can and will protect him if he goes back, the applicant selected the ‘box’ marked ’No’, and wrote:
The authorities could not interfere actively in the private affairs and would not protect me privately for fear of revenge.
In response to the question of whether the applicant would be able to relocate within [Vietnam] the applicant selected the ‘box’ marked ‘No’, and wrote:
I am unable to relocate within the country because gang’s people are everywhere in the country where they organised widely their activities.
At the time the applicant lodged his protection visa application, he provided a number of documents in support of his claims. Evidence and argument has also been provided to this Tribunal and are contained in the Tribunal’s file 1711360, including a submission dated 21 October 2020 (excerpt below) including accompanying documents, and a statutory declaration from the applicant. The Tribunal notes, some, even many, of these documents were provided to the Department previously.
The applicant has provided the Department six typed versions of emails he claims he received from two former business partners ([Mr A], and [Mr B]), which appear below in chronological order as sent/received by the applicant.
Timeline and outline of evidence
The applicant provided the Department with a translated copy of an ‘Enterprise Registration Certificate Company Limited with One Member’, issued by the Department of Planning and Investment (Ho Chi Minh City), ‘Initial registration dated [date] November 2011’ for company name (in Vietnamese) [Company 1]. The certificate, under ‘Business fields’, details “[specified business activity]”, and “Detail: [specified activity]”. The certificate identifies ‘Charter capital’ amounting to [amount] Vietnamese dongs, and details the ‘Information of owner’ as [the applicant’s name], date of [birth]. The issue date for the certificate is [date] October 2011. No ‘English’ name is given to this company in this certificate.
The applicant provided the Department with a copy of a formal Socialist Public of Vietnam, Certification made in the applicant’s name, [in] February 2014 at Ho Chi Minh City Police, which details the applicant is the Director of [Company 1] with a monthly salary of [amount] VND ([amount] AUD). In Vietnamese, the name appears as [specified]. The certification is signed and dated by the applicant as Company Director [in] March 2015.
The applicant provided the Department a typed copy of two (threatening emails) he claims to have received from a former business partners [Mr B] (undated) and [Mr A] ([date] June 2014), as follows:
[Handwritten comment – letter of threat from Viet Nam 2014]

From [Mr B]

If you have not yet paid back my money, I then put a curse on you everyday so that you could not live peacefully; to me, that is a very big sum of money. Many sleepless nights I have got because of infuriation, you should not take away and spend those monies to make many other people suffer as a result.
JUST WAIT THERE, THERE WILL BE A DAY YOU MUST PAY A PRICE FOR WHAT YOU HAVE DONE, LIFE DOES NOT LET YOU LIVE IN PEACE FOR-EVER. WAIT UNTIL A DAY TO SEE YOU ARE NOT ALLOWED TO LIVE.

[date] June 2014 from [Mr A]

Forwarded message
You are a cheater bastard. You have deceived my money, could it make your life better ? I though your type was knowledgable person, overseas educated one but in contrast, you still cheated and deceived people’s monies like other people, you have turned yourself into a profession of thievery like ignorant people from black society.
The applicant has provided the Tribunal with a letter dated [date] September 2014, from [Mr C] in Ho Chi Minh, Vietnam, on behalf of the [Company 2]. The author enquires after the applicant and asks how he is “coping” with his business breakdown. The author says his mother urges him to write to the applicant to see if there is something the author’s family can do to help. The author says the applicant’s partners of his “family business” come to his office often to talk about the applicant’s family’s debt and “threat to act dangerously”. The author advises the applicant to stay overseas as he considers the applicant shouldn’t come back to the “situation” in Vietnam.
The applicant has provided the Tribunal (and Department previously) with a letter from his mother (addressed to his distant relation in Melbourne) dated [date] December 2014, explaining her family has “lots of debts which could cause a life-threatening to us.” The applicant’s mother says they had to hide away from debtors and claims if the applicant returns to Vietnam his life could be “jeopardised” because he is her eldest child - and must carry on the family’s ancestry. The applicant’s mother states she had to hide away “somewhere” from debtors. The letter concludes, “many debtors have been looking for us to kill”.
In a statement provided to the Tribunal from the applicant (made in [Suburb 1]) and dated ‘January 2015’, the applicant states the following:
I, [the applicant’s name] (known as [the applicant’s alias]), [age] years of age, born in Vietnam graduate in Bachelor degree of [field] in 2011 at [a] University – [Australia]. I am the eldest in the family of [number] children.
I went back to Vietnam to help my parents in business in 2011. We were doing wholesale and retail of trading of [food] and exporting to overseas mainly Asia – China.
At that time, my family with financial cooperation of some partners opens a company [under] my name as director. Towards 2013, the family own business declined and gradually suffered heavy loss of income due to political crisis between China and Vietnam. There will be possible war between two countries up to rumours.
The [company] also had been sinking quickly in operation. People panic, the partners want to withdraw their money which my family had not from company.
Considering the dangerous situation of retaliation by harms or killing, my family gather all the assets they can from relatives to let me have a chance to be safe at overseas, as I am the eldest of children, and traditionally succeed the name of family. They also hope to give me opportunity to continue my higher education in Australia, where I felt happy and comfortable since the time I start my education here in 2009.
Eventually, my family own business come to a complete shutdown with loss of assets and properties. My father had to apply to authority for bankruptcy which indeniably anger partners. For fear of revenge, my family went on hiding in deep country unknown to anyone and lives merely until now. Now and then, they try to contact me secretly through relatives help, mostly at deep night.
Meanwhile, I am alone in Australia living temporarily with cousin [Ms D], resident of Australia for nearly 40 years. We met on referral of University housing in 2009, and by chance, after talk of length, found out our family ties since then. In 2010, we went to Vietnam and reconnect family relationship with my parents.
In Australia, I have worked in a [shop] twice a week to meet my personal expenses. At trimester 3 – 2014, news that due to the bankruptcy, my family had no means to financially support my study although I am in half way through to my [course] at [the] University.
For the moment, I am very confused and distress with heavy headache and no appetite by the whole misfortune happened to us. I fear for my family in Vietnam under threats of uncontrolled underworld. I fear for my uncertain and risky future. I am very physically tired and mentally tired of my misfortune, tired of thinking, and tired of living in this chaos of my life. My sense of responsibility as eldest child of family telling me to be brave, but how?
I vaguely remembered when I came to Australia, I was full of aspirations. I determined to be brilliant, and talented. But now, I do not know myself anymore, I feel tired, and hopeless, like a sort of prey caught in giant web, waiting to be executed. I wish to become again a child protected and cared for with no worries and fear. My abilities in Music [and] Computer are gone from me. I am very frustrated.
I want to have a long long sleep now. Forgive me to be such a miserable person.
The applicant has provided the Tribunal (and Department previously) with a Medical certificate issued by [a named doctor], dated 4 February 2015, which certifies the applicant attended the medical centre during January and February 2015 to see [a] clinical psychologist. The certificate states the applicant presented with a number of issues including a family crisis in Vietnam, financial difficulties, and mental health issues in relation to his problems. The certificate states the applicant is acutely distressed and unable to complete his studies during Trimester 3.
The applicant provided the Department a typed copies of a further emails, which the applicant claims he received from former business partner [Mr A] and [Mr B], as follows:
[March] 2015 from [Mr A]

Subject: [deleted]
I asked you hen you could sign the balance of fund payable to me. Was you has stolen monies so bluntly ? You are worse than a thief. You did that, could your parents close their eyes in their deaths ? You will see your future babies shall be monsters at their births. I let you know that in this April if you do not pay me any monthly instalment, on every fifteenth of lunar month I go to temple to put a curse on your whole family and yourself.
[date] April 2015 at [time] from [Mr B]
This debt you will have to bear it all your life, even if I die I will take it with me. In this life if you cannot pay it all, in your next life you will pay a price.
[April] 2015 from [Mr B]
Subject: Pay back money now !
In past time, I have tried to bar my suffering, you have cheated my monies and other people’s monies. It was very hard for me to have found you, I have applied for court hearing, you wait there to attend court, I hate you. In this life if you do not pay all debt, then wait until your next life to pay on.
[April] 2015 at [time] from [Mr B]
In recent time I have tried to bear my suffering and I have found you and have made contact with you, wait for me there and be at court with me. I do not let you engage in such freely-cheated manners.
The applicant has provided the Tribunal (and Department previously) with a letter from his cousin [Ms D] dated [date] May 2015. The author explains how [the applicant’s alias] (another name for the applicant) met her because he was referred to her by [the] University, as she rented rooms to students. The author states that after talking to the applicant she realised the applicant’s parents are her cousin-in-law. The author states she travelled to Vietnam with the applicant in 2010 to visit the applicant’s family. The author states in 2011 the applicant went back to Vietnam to help his parents commence and develop a [new] business. The author states the applicant came back to Australia in October 2013 to study [at the] University, stayed with her for two weeks, then departed again for Vietnam. She states he returned to study, in February 2014. The author states in early December 2014 news reached her the family were bankrupt, and the applicant had to cease his studies. The author states “Letters of threat begin to come through email from outlaw gang with violent and indecent words about harming and killing.” The author states she convinced the applicant to see counsellors, psychologist, and doctors for treatment. The author details how the applicant approached the community advice bureau at her suggestion, and where he discussed his circumstances with a solicitor at the bureau by the name of [a named person], who suggested he apply for protection visa to enable him to stay in Australia. The author states she is a sole parent and senior Australian citizen, who has [adult] sons who live separately from her. The author states the applicant could be a “…great handy member family to me in my aged life.” The author concludes that the grant of the visa to the applicant would help him “…settle down with himself without anxiety, distress, and fears and move on proudly with his educational life and talents.”

The applicant has provided the Tribunal (and Department previously) with a letter from [Ms E], dated [date] May 2015. The author states she has been an Australian citizen since 1992. The author states she has known the applicant since 2010 as a student of [the] University, introduced by a close friend [Ms D], who is a parishioner in [Suburb 1]. The author states she met the applicant again in early 2014 at [Ms D]’s residence. The author states the applicant became her workmate in August 2014, as they both worked at [a workplace]. The author recalls the applicant’s family in Vietnam had a serious financial crisis which affected the applicant. The author states, the applicant has mentioned to her that on occasion he mentions he is homeless and in danger.
The applicant provided, with his application for a protection visa, a letter from himself dated 20 May 2015. In that letter, the applicant states the following:
I came to Australia in February 2014 on a student visa which will expire by end of August 2015. In early December 2014, I discontinued my study of [my degree] due to financial circumstances change and bankruptcy of family in Vietnam. My parents and family members urgently moved to remote countryside. They virtually live poorly in hiding. Since then, I can hardly keep contact with them only through relatives who help for liaison.
Ignoring law of bankruptcy, angry partners of businesses look for noise by bribing outlaw gang to threat and harm my family. Such violent activity is well-known in Vietnam and beyond legal control of authority, as corruption exists nationwide. There is no doubt that I will risk my life by returning back to Vietnam in such dangerous situation. Also, on the insistence of my parents and by tradition I have to keep myself safe to carry on the name of family considering I am the eldest son of [number] children (details enclosed).
Now, I have lost my family, my own assets in Vietnam, my academic education, my self-confidence. I have no other alternative to turn to department of Immigration for help.
Lastly, I am grateful to department of Immigration to understand my hopeless situation to consider and grant me opportunity to a safe decent life to contribute effectively my ability to Australian Community.
The applicant has provided the Tribunal (and Department previously) with a letter from [a named person] dated 28 May 2015. The author states he is an Australian citizen for the last 22.5 years. The author states he is a good friend of the applicant, who he has known since September 2014, and has asked him to provide a character reference. The author was introduced to the applicant by [Ms D]. The author states he leads in the singing with parishioners at [Church 1]. The author states the applicant arrived in Australia six years ago, and returned to Australia in February 2014 to study though faced “downward change” in his and his family’s finances. The author concludes that the letter is to assist the applicant with his request to stay legal in Australia.
The applicant has provided a second letter, dated 15 December 2016, from [Mr C] in Ho Chi Minh, Vietnam, on behalf of the [Company 2]. In this letter the author wishes the applicant a good Christmas and New Year. The letter states there are “rumours” that a number of gangs are setting up networks in Vietnam, and advises he keeps “calm and quiet” as he fears for his safety and the applicant’s. The letter tells the applicant not to trust anyone with his identity and work place. The letter ends by claiming the applicant’s previous business partners “apparently” paid some gangs to watch out for the applicant’s family and the applicant, should he return [to Vietnam]. The letter states the applicant’s parents live a low-profile and in “poor condition” in the “remote country”. The letter concludes, “Protection money and bribes are common now in all business areas. What can I do about? We need to live.”
The applicant has provided the Tribunal with a second letter from [Ms D], this one dated 20 May 2017. In that letter the author states since [February] 2014 the applicant has lived regularly with her family in [Suburb 1], and confirms her family are willing to support him considering “…his dangerous and distress personal situation in late 2014”. The author says she deeply appreciates that by compassion grounds the applicant will be granted a permanent visa to be able to restart freshly his life in Australia.
The applicant has provided the Tribunal with a letter dated 17 May 2017, from the applicant’s employer in Australia, [named] (provided to the Tribunal) which attests to the applicant having been an employee in [a Suburb 1 business] for the past three years.
The applicant provided to this Tribunal a six-page Statutory Declaration dated 21 October 2020. In points 1-28 the applicant outlines his background circumstances, and claims. The applicant explains the circumstances in which he provided previous evidence to the Department, and points out at that at the time he prepared his protection visa application he did not have a legal representative. The applicant states he was not interviewed by the Department prior to their decision to refuse to grant him the protection visa. The applicant details his “issues” in Vietnam, including an account of his travel and educational history. The applicant identifies the company, in which he was a director, as [Company 1]. The applicant states, “The business was a wholesale and import and export business, The business imported [specified goods]. [Details deleted]. My parents, siblings and many members of my extended family worked in the business. The business employed about [number] people. It was a well-known business. The business had independent investors. They would invest money and then become a franchisee.”. At point 10, the applicant explains that toward the end of 2013 a crisis between China and Vietnam occurred. The applicant states this affected the Vietnamese economy and their business, including causing it to lose business in China (trading partners). The applicant states that by the end of 2014 the situation had greatly worsened and while exports to China continued, the business was not paid for its produce. The applicant states that their business partners informed the police their company had become bankrupt and blamed his parents for what had occurred. The applicant states that between June 2014 and April 2015 he received threatening emails sent by [Mr B] and [Mr A] who he states were investors in [Company 1] (copies and translations of the emails have been provided to the Tribunal). The applicant explains that as he is the eldest child of the family, and “seen as a future Director of the family business”, the threats have been directed at him. The applicant states that from March 2014 his family face “significant issues” in Vietnam as his family’s business partners hired a gang to harm them. The applicant states the partners wanted to punish his family for their failures of the business and the money that was lost. The applicant details how his mother wrote to [Ms D] on 15 December 2014 and said the situation was very serious and said she was worried the applicant would be killed if he returned to Vietnam. The applicant states his parents went into hiding at that time, and he has not had any communication with them, whatsoever, since. The applicant details the communication he ahs had from his friend [Mr C], and letters from him dated 30 September 2015 and 15 December 2016. The applicant states his friend has forward to him (on 27 July 2018) “…death certificates for family members who had died during the period my family’s business went bankrupt. He obtained them from a distant relative of mine. [Mr C] is a businessman and well-known friend of my family. He was approached by my extended family who provided these documents.” The applicant states one cousin, one paternal uncle, and two of his maternal uncles, have died, and although their death certificates state ‘natural causes’ he states he does not believe this. The applicant states that given they each unlce worked for the family business, “I am concerned they were killed by gang members associated with my family’s former business partners”. The applicant adds, “I believe they were killed by the angry investors and/or associates, who regularly threatened my family.” The applicant states his younger brother [named] died [in] March 2015, and his death certificate forwarded to him by his friend [Mr C]. The applicant states his brother’s death certificate states drowning as the cause of death, though he expresses his concern that his brother was “killed by our family’s business partners or their associates”. The applicant states he was not aware of his brother’s death until July 2018, when he received the letter from [Mr C]. The applicant outlines the process he followed since arriving in Australia, including an outline of his health and educational issues throughout. The outline includes a description of his interactions with Catholicism, as the applicant states he would often join [Ms D] and her children at Church. The applicant discusses his passion for music and the coming together of his passion for music with his attendance at mass with [Ms D] at [Church 1]. The applicant states that when he received his protection visa refusal in May 2017 he was very sad. At that time he met, through [Ms D], [Mr F], a parishioner at [Church 1] who worked with an Asylum and refugee support team at [Church 1] (he also plays [an instrument]). The applicant states that during this time of “despair and depression”, “I believe to have discovered the power of prayer and reflection which brought me some experience of peace with faith”. The applicant states, “This was a turning point in my journey to the faith.” [Mr F] and [Ms D] became the applicant’s co-god parents, as the applicant formally converted. During Easter 2019 the applicant states he completed his baptism, eucharist and confirmation. The applicant explains that due to Covid-19 he has been unable to attend mass in person in in 2020, though states his faith remains very important to him. The applicant states his faith has helped give him hope in his time of despair, though he still worries about his family and prays for them. From point 29 to 34 the applicant provides the following response to his own questions, as follows:
What I fear if I return to Vietnam – If I was forced to return to Vietnam, I fear I would be seriously harmed if not killed. I am fearful I will face physical and mental harm and torture.
Who I fear harm upon return to Vietnam – I fear harm from my family’s business partners and their associated gangs. I also fear harm from the wider community and the Authorities.
Why I fear harm – I fear harm from my family’s business associates as they want to seek retribution against my family and I and punish us. They have tried to harm my family and forced them into hiding. As the eldest male child in my family, I am viewed as the person who carries on the family name. I believe they would want to seriously harm me to punish my parents. My family’s business associates are well connected and can use their associates, for example gang members to ruthlessly harm me. I also fear harm due to my conversion to Catholic faith. I was born a Buddhist and have converted to Catholic faith. My faith is very important to me. If I returned to Vietnam, I believe I would be at risk of harm from the wider community and the Authorities due to my conversion. These groups are known for targeting Christians, including Catholics and especially converts.
Why I cannot relocate – My family’s business associated are powerful. They have strong connections with the Authorities and also with gangs that operate throughout the country. Further, Catholics are targeted by the Authorities no matter where they reside in Vietnam. Therefore, there is nowhere safe I can live.
State Protection – The Authorities in Vietnam are corrupt. My family’s business associates are well connected. I am fearful they will use their influence to ensure the Authorities do not protect me rather punish and harm me. The Authorities are not supportive of Catholics. They often destroy Catholic places of worship and limit the rights of Catholics. Therefore, the would not protect me from religious persecution.
In the applicant’s pre-hearing submission to this Tribunal, dated 21 October 2020, through his legal representative, the applicant further elaborated on his claims (NB the below is not exhaustive, though is an important part of the submission, all of which has been considered):
“The Applicant is fearful that if he was forced to return to Vietnam, he would be at risk of harm due to his faith. He is fearful that the Vietnamese Authorities would subject him to serious harm due to his Catholic faith. He believes that he is an increased risk of harm given he has converted to the faith. He instructs religious persecution is widespread throughout Vietnam. It is apparent from country information below that the Vietnamese Authorities continually suppress the rights of religious groups including Catholics. They use vague laws to interfere in religious groups ability to practice their faith. They also persecute religious activists. We submit that the suppression of rights of religious activists suggests that the overall situation for religious minorities including Catholics is unlikely to improve. The Applicant would need to be careful that when attempting to practice his faith, his practices were not construed as proselytising as this would place him at risk of harm from the Vietnamese Authorities. It is our respectful submission that overall the country information suggests that the applicant’s life or liberty would be at risk due to his faith. Further, he would be at risk of physical harassment, persecution and harm due to his faith, if forced to return to Vietnam.”
Documentary evidence provided to the Tribunal
Hearing
At the hearing the applicant made the following additional claims and expanded on his claims to fear harm made in his protection visa application.
Oral evidence of [Mr F]
The witness first met [applicant’s alias] (the name by-which he refers to the applicant) at [Church 1] though fellow parishioner, [Ms D]. [Ms D] had approached [Mr F] back in May 2015, after she was concerned because [the applicant] had been denied his protection claim by the Department. [Mr F] works with a support group within his Church who help International students with their protection claims. [Mr F] had assisted an Iranian student with his “story” previously. The witness described the applicant’s past, including his understanding of the applicant’s family’s financial difficulties and his various protection claims including his fear of gangs employed by his family’s former business partners. The witness outlined his shared interest in music, with the applicant, and described the applicant’s association with [Church 1]. The applicant’s involvement with [Church 1] culminated in the applicant’s conversion to Christianity. The witness was the applicant’s sponsor and co-God Father. The conversion was facilitated through Father [name]. The witness has maintained contact with the applicant since that time. The witness, in response to the Tribunal’s question, indicated he believed the applicant was very close to his family, and their family business, in Vietnam. The witness had an understanding of the various emails threatening the applicant, including the letter from the applicant’s mother to [Ms D], telling the applicant not to return to Vietnam. The witness also referred to the applicant’s various ‘papers’, including medical documentation during his oral evidence. The Tribunal enquired when, based on his observations and conversations with the applicant, the applicant last spoke with any of his immediate family (parents or siblings). The witness told the Tribunal he was not sure. The Tribunal asked whether he knew when the last occasion was the applicant spoke to any of his family. The witness told the Tribunal in the past three months. The witness explained for the Tribunal that this was when he and the applicant were putting together documentation for the [lawyer] [the applicant’s representative]. The witness told the Tribunal the applicant spoke to his ‘friend’ ([Mr C]) and he’d heard from him. The Tribunal observes that at this point in the hearing the witness could be heard saying “here we are”, as he appeared to refer to his notes. The witness said, “This may help”, the witness outlined how he suggested the applicant try and contact his friend, as the last contact the applicant had made was back in July 2018. The witness suggested this to the applicant in order to obtain the most recent information in advance of the review of his protection visa refusal. According to the witness, the applicant had told him he’d tried to contact his family – through his friend [Mr C] – who he called by mobile telephone a couple of times, but the applicant had told the witness he’d had no success in reaching his friend [Mr C], who acted a s ago-between with his family.
Oral evidence of [Ms D]
[Ms D] said she has assisted the applicant, including referring him to medical assistance since he came to live with her. The applicant was initially referred by university student services as the witness rented out student accommodation. The witness said she travelled to Vietnam in 2010 with the applicant where she met the applicant’s family, which are her distant relatives by marriage. The applicant completed his bachelor studies in 2011 to help the family business. The applicant visited for a couple of weeks in 2013. In 2014 the applicant returned to Australia to do further studies in Australia, because his parents recognised the value of him doing a [specified] course in Australia and its value to the family business. In 2015 the witness learned the news of the family business becoming bankrupt, and at that time, began receiving letters of threat from gangs. Physically and mentally the applicant could not continue his study according to the witness. The witness urged and went with him to the university counsellor/doctor and psychologist. The witness also took the applicant to the Community Advice Bureau so they could help the applicant sort of his migration situation. The witness said she received a letter from the applicant’s mother, but says she lost it, though had translated it. The witness said she had received a typed letter from the applicant’s mother, together with her personal signature. The witness recounted how she met the applicant’s mother, with her own mother, at her home in Vietnam. The witness said she met the applicant’s parents only once. The witness told the Tribunal the applicant has lived with her the entire time he’s lived in Australia, except when work took him away from day-to-day. The witness said she has had no communication with the applicant’s family since she received the letter, though she has read the letters from the applicant’s friend [Mr C].
Oral evidence of the applicant
The applicant was asked by the Tribunal whether he had any oral evidence he sought to add in respect to his protection claim, and which is in addition to his various statements and documentary evidence submitted to date. The applicant responded to the Tribunal, “No, I have nothing to add.” The Tribunal enquired about a statement from [Ms E], wherein the author remarks the applicant had experienced homelessness on occasion and faced danger. The applicant said in 2014 he was shocked and distressed by the bankruptcy, and even thought about suicide. The applicant says when he was at university, he saw a psychologist who worked with him. The applicant said because he was the eldest in the family, and he has a family, but at that time because of what happened, he felt like he no longer had a family. Because the applicant was married and healthy, and as he has a family with a house and home, he felt like he no longer had a home or family. That’s why he thought he was like a homeless person, because he had no family, no home. The applicant said he had nobody with him, nobody around him, he was shocked and distressed, and took medications and stayed in bed for months. The applicant said [Ms D] had helped him a lot. The applicant told the Tribunal he was studying and had to stop, as the threats were made, and he felt as though he would be killed. The applicant started thinking about killing himself, though [Ms D] suggested he see somebody, a psychologist. The applicant said in relation to the protection visa he had no idea, but then the other people were helping him. The applicant thought as he was studying [the specified] degree, if he completed the degree, he could apply for permanent residency or get a job working for some company. The applicant said he didn’t know much about the protection visa. The applicant said the reasons he always studied or worked, even when he was in [Country 1], he said he never encountered any problems himself, so when he did, this was a shock for him. The Tribunal asked why did the applicant apply for a protection visa? The applicant told the Tribunal that because of the problem he had in Vietnam, he would get killed. He says he was counselled by other people, advised by other people, because he is young he could have opportunities here, re-start his life again, and stand on his own feet, and need not think about killing himself (and also because Australia is a country with compassion and treat them with compassion, and Australia would save him from his situation). The Tribunal asked the applicant, who would harm him if he returned to Vietnam? The applicant said received four letters (death certificates) – from deceased persons - (three from uncles, another from a relative with their accompanying death certificates). The Tribunal repeated the question to the applicant, Who would harm you? The applicant told the Tribunal that even in Australia the people could find where he lives in Australia. The applicant said ‘they’ already contacted the authorities, and the authorities are all connected to each other. The Tribunal asked whether the applicant feared harm from any other person or authority, should he return to Vietnam? The applicant told the Tribunal he definitely could be harmed, because the evidence is that his family has already been harmed. The Tribunal asked whether he feared being harmed because he is a Catholic? The applicant said he was very fearful, as he is a Catholic now. The Tribunal asked who would harm him? The applicant told the Tribunal, “The authorities, because I converted from one religion to another, the authorities might know and become aware of it.”. The Tribunal asked whether the applicant was politically active at all (in addition to being a Catholic)? The applicant told the Tribunal he was “Just a normal working person”.” The Tribunal asked whether the applicant was an ‘activist’ for any causse, did he demonstrate, agitate, publicly advocate for anything publicly? The applicant told the Tribunal he had no involvement in any political activities, or participate in any demonstrations, adding he only helps people in terms of learning to play the [instrument]. The Tribunal had regard to relevant country information, which it discussed with the applicant. The Tribunal advised it had read and considered the country information provided by the applicant and his representative. The Tribunal has had regard to the whole report of the Department of Foreign Affairs and Trade on Vietnam (country information) dated 13 December 2019. The Tribunal pointed out a number of pertinent sections of the country information (‘DFAT Report’). Among other aspects covered during the hearing, the Tribunal recalled the DFAT Report states Vietnamese people have the right to religious belief under the constitution, with conditionality based on the penal code. The DFAT Report states notes a United States Commission of International Religions Freedom Annual Report government recognised 43 religions including Catholicism (accounting, in totality, for some 25 million followers of differing faiths). The DFAT Report notes there’s a considerable difference in the treatment of official and independent religious groups. The DFAT Report notes, for the most part, religious followers belonging to officially recognised faiths are able to practice their faith without significant interference. The DFAT Report draws attention to those religions not officially recognised, and draws attention to a report, which indicates particular concerns in 2002 and recall reports from international observers noting increased acts of violence by police and plain-clothes people against religious groups (including registered groups) in 2018 and 2019. The Tribunal notes the DFAT Report observed a new law, on belief and religion, came into effect in 2018 which nominally obliged to the government to protect religious freedom. The Tribunal notes the DFAT Report assess that adherents to recognised religious groups are generally able to practice their faith with minimal interference from the authorities, although they may still face discrimination from local or provincial authorities. The Tribunal notes the DFAT Report, under the heading of ‘Catholics’ states Catholic are generally able to practice freely at registered Churches, and unlike other religions there is no other independent organisation claiming to represent Catholics. The DFAT Report assess that Catholics who belong to register Churches, and are not politically active, face a low-risk of official harassment. The Tribunal, for the applicant’s agent’s ease of reference, drew her attention to the specific clauses referenced above, and noted the Tribunal also has considered the entire-report, including relevantly, the sections pertaining to gangs, corruption, form of government. The Tribunal made clear it has considered the applicant’s country information as provided. The Tribunal invited the applicant (through his representative) to make any submission with any evidence or argument with respect to any part of the country information, and granted the applicant until close of business on 13 November 2020 to provide any evidence or argument(s) whatsoever. Before concluding the hearing into the review, the Tribunal sought to clarify with the applicant whether there were two businesses or one in respect to his claims. The applicant told the Tribunal, “Only one business”, but you can operate in different areas. The Tribunal asked what was that business? The applicant said it was about [specified] and importation. The applicant added that others could work with his business, and they acted like an agent, or representative. The Tribunal sought to understand what the business actually did. The applicant said they [details of business deleted], and they can trade items, [which] they purchase and sell to China. The applicant said they joined with many domestic companies as well. The Tribunal asked at what point he decided to return to Australia to continue his studies, and why? The applicant told the Tribunal in 2013 he came to visit [Ms D], and his family already had an intention for him to further his studies (and he wanted to study further his interest in [relevant] business) that’s why he chose a course which majored in [that field], as he is a believer in the more you study the more you will gain. The Tribunal asked what the financial state of the family business was when he left Vietnam to continue his study? The applicant told the Tribunal, “It was normal, I was studying as normal, I didn’t know.” The Tribunal asked, where did he get the money to come back to Australia to study [such a] programme? The applicant told the Tribunal, “Because my family was doing business, they got money from their customers, and they buy and sell, and buy and sell.” The Tribunal sought to confirm with the applicant, that his situation was that he returned to Australia to study and was financed by his parents and their business, which was doing reasonably well in 2013. The applicant confirmed to the Tribunal this was a correct understanding (summary) of the applicant’s evidence. The applicant said, “Because at that time when I come back to study the company was doing normal, as usual”. The Tribunal confirmed with the applicant that the timing was the end of 2013, which the applicant acknowledged when he started his study in 2014, it was “normal”. The Tribunal drew the applicant’s attention to a statement he provided to the Tribunal in January 2015 (no specific date is written on this document) the applicant said that, fearful of retaliation and harm of killing, gathered all their assets from their relatives to provide the applicant with a chance overseas as their eldest child. The Tribunal asked how the applicant explained what appears to be the difference in what he has said previously, with his oral evidence before the Tribunal. The applicant said there was “No difference”. The applicant said in 2013 and 2014 it was normal, and only things happened in 2015. The applicant said in 2014 he was studying, and once he knew about the issues, he applied early to 2015. The Tribunal referred to the applicant’s most recent statement (provided to the Tribunal pre-hearing) wherein the applicant refers to returning to Melbourne to commence his [degree] [in] February 2014. The applicant told the Tribunal, “Yes, correct, [February]. At that time, it was normal - everything - family was normal”. The applicant added that in 2013, 2014 the situation was normal, and again repeating, no problems in 2013, 2014.
Mandatory considerations

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 most recent report from DFAT is the Country Information Report for Vietnam dated 13 December 2019 (‘DFAT report’), which I have considered. The following excerpts were specifically relevant, and discussed during the Tribunal’s hearing into the review (in addition to discussion of the country evidence the applicant has provided to the Tribunal(including the post-hearing submission)):
Religion
3.16 Officially, Vietnam is an atheist state. Article 24 of the Constitution states, however, that all people have the right to freedom of belief and religion, including the right to follow any religion or to follow no religion; that all religions are equal before the law; and that 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 law. These constitutional rights are conditional on law and The Penal Code (2015) establishes penalties for practices that, in the view of authorities, undermine peace, national independence and unity.

3.17 According to the 2019 Annual Report of the United States Commission on International Religious Freedom (USCIRF), government-recognised religions/faiths in Vietnam numbered 43 religious organisations from 16 religious traditions, representing more than 25 million followers in total. These traditions included: Buddhism, Hoa Hao Buddhism (see Buddhists), Catholicism (see Catholics)…. (continues…)

3.18 Some Buddhist, Protestant, Hoa Hao, and Cao Dai communities choose not to participate in officially recognised religious organisations and instead belong to independent organisations that also claim to represent the religion. There is a considerable difference in the treatment by authorities of official and independent religious groups. For the most part, religious followers belonging to officially recognised religious organisations are able to practise their faith without significant interference, regardless of which particular religion they may follow. Those associated with independent organisations, however, are less likely to be able to do so (as outlined in this section). There is also a difference in treatment according to location: whereas religious followers in urban, economically developed areas are generally able to exercise their religion or belief freely, religious communities in rural parts of some provinces are more likely to face restrictions and/or harassment. This is particularly the case for religious followers in ethnic minority areas, where ethnic, political, and religious issues frequently overlap (see also Race/Nationality).
3.19 USCIRF has classified Vietnam as a ‘country of particular concern (CPC)’ since 2002, which defines it as ‘a country that commits systematic, ongoing, and egregious violations of religious freedom’. Human rights observers reported an overall decline in the situation for religious groups in 2017 and 2018, particularly for followers of independent religious groups. Religious leaders representing independent groups have reportedly faced various forms of official harassment, including physical assaults, arrests, prosecutions, monitoring, travel restrictions, property seizure or destruction, and denials of registration and/or other permissions. Followers of independent religious groups have reportedly been subjected to public criticism, forced renunciation of faith, detention, interrogation, torture, and imprisonment. International observers also reported an increase in acts of violence against religious groups (including registered groups) in 2017 and 2018 by police and plainclothes individuals, including some working closely with or representing authorities.
3.20 A new Law on Belief and Religion (2018) came into effect in January 2018, superseding a number of existing regulations, decrees, policies and practices overseeing religion. The law nominally obliges the government to protect religious freedom, gives Vietnamese religious organisations the right to legal personhood, and has eased some operational bureaucracy for registered religious organisations, reducing considerably the waiting period for applications (from 23 years to five years). The new law also requires all religious groups to register with the Government Committee for Religious Affairs and to report on routine religious activities, including festivals and conferences. The implementing regulations, which came into force in June 2018, impose fines on organisations deemed to ‘abuse religion to infringe upon the interests of the state or engage in fabrication or slander’. Human rights organisations have raised concerns that these provisions are overly vague, and potentially enable authorities to arbitrarily punish religious groups.
…….
…….
3.24 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from authorities, although they may still face discrimination from local and provincial authorities. Adherents associated with independent religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.
………
Catholics

3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.
3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.
3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 (see Recent History), Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 (see Political Activists). For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections, and claimed it had reduced online traffic to Catholic websites
DFAT Country Information Report VIETNAM (December 2019) 23 (see also Media). Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.

3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.
3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.
3.37 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.
The Tribunal outlined to the applicant the country information, particularly in respect to the references made by DFAT in respect to their assessment that “Catholics who belong to registered churches and are not politically active face a low risk of official harassment” [from Vietnamese authorities], which is relevant in this matter.
The Tribunal received a post-hearing submission and attached country information fomt he applicant’s representative. That country information has also been taken into consideration in this matter.
Findings of fact
·     The applicant is a national of Vietnam and was born [date].
·     The applicant converted from Buddhism to Christianity.
·      The applicant is married to an Australian Permanent Resident.
Analysis
The essence of the applicant’s claims is that he left Vietnam, initially because he feared harm from gang-members acting at the behest of former disgruntled business partners, although now the applicant says that because he has converted to Christianity, he also fears harm from the Vietnamese authorities because of his faith.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The applicant claims in respect to when the threats from his past business partners began are contradictory (as discussed above at point 45). The applicant’s initial claim is that he was sent by his family (to study in Australia) against a background of deteriorating business affairs, although his later evidence is that at that time the business/es were running normally. The contradiction in the applicant’s evidence over time causes the Tribunal to serious doubt the reliability of the applicant’s oral and past written claims in these regards.
The applicant has provided very generalised accounts of the business dealings he and his family have had in the past. The applicant was clear (in his oral evidence before this Tribunal) he had one business, which failed, and this business failure led to threats from individuals who had invested in that company. This contradicts the documentary evidence provided by the applicant himself (previously) as outlined at points 25 and 26 above. The applicant’s involvement with the no fewer than two companies leads the Tribunal to logically conclude the applicant’s, and family’s business enterprises, are more complex, and longstanding, than the applicant has presented orally at the hearing conducted by the Tribunal. The vagueness surrounding the applicant’s oral evidence in regards to the failure of his business/es during this Tribunal’s hearing, combined with the contradictory nature of the applicant’s evidence in this regard, has caused the Tribunal to doubt the credibility of the applicant’s oral evidence and the veracity of these aspects of his protection claims.
In addition, the applicant initially claimed (as part of his original protection visa application, and in writing since) that he was assaulted by street gangs. In his initial claim the applicant blamed this attack on the fact he was perceived by locals to be a wealthy businessman. No evidence has been produced to corroborate such an assault ever took place, including any other person who speaks to the events at that time based on their observations or interactions with the applicant himself. The applicant has also not provided a detailed account, including the timing, actual injuries or any other level of detail such that this Tribunal has found these aspects of his claims credible. Even were the applicant to establish he was physically attacked, the applicant has not satisfied the Tribunal that any such attack was in any way related to his previous business partners.
Further to the above, the Tribunal finds the email ‘threats’ received by the applicant (in their current form) are unverifiable and could easily have been sent for the purposes of assisting the applicant in his protection claim. In this regard, the Tribunal notes there is no consistency in the way the emails have been produced in evidence, for example, some do not include the ‘subject’ matter line, and none of them appear to be from a direct print-out from a specific email account. However, even were the Tribunal to accept each email as genuine (that is, accepting them at face value), in the Tribunal’s opinion, they more accurately reflect a consternation and frustration with the applicant and his role in a failed business venture, and the investors desires to be repaid, than any actual threat to commit harm upon the applicant by the authors.
In respect to the applicant’s claim he fears harm from the Vietnamese authorities because of his faith, the Tribunal notes it is the applicant’s own oral evidence before this Tribunal that he is not an ‘activist’ of any kind, for any cause, and notes he has not demonstrated, agitated, or advocated for anything publicly. That is, the applicant oral evidence ot this Tribunal is that he has had no involvement in any political activities and has not participated in any demonstrations.
Findings
Having had regard to the material before it, the applicant has not satisfied the Tribunal that the harm claimed in respect to the gangs acting on behalf of his (and his family’s) past business partners, is for one or more of the reasons set out in s.5J(1) of the Act. That is, there is no claim or evidence which supports a finding that the applicant faces any harm from the gangs because of his race, religion, nationality, political opinion or because he is a member of a particular social group.
Further to the above, the Tribunal is not satisfied by the applicant - that in accordance with Section 5J(1)(a) of the Act - the applicant fears persecution for reasons of his religious beliefs.
However, even were the Tribunal to give the applicant the benefit-of-any-doubt in respect to Section 5J(1)(a), the Tribunal must still consider whether, there is a ‘real chance’ that, if the applicant returned to Vietnam, the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a): 5J(1)(b).
The Tribunal, mindful of the most recent DFAT Report and advice, wherein it states “DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.”
Given the applicant’s own evidence is that he is not politically active, and given the DFAT Report assesses Catholics (such as the applicant who is not politically active) face a ‘low risk of official harassment’, the Tribunal does not accept there is a ‘real chance’ of persecution for one or more of the reasons mentioned in Section 5J(1)(a) of the Act in the receiving country (Vietnam).
Given the above, the applicant is not a refugee as defined in Section 5H of the Act and the criterion in Section 36(2)(a) of the Act is not satisfied for this reason.
The Tribunal is not satisfied that the applicant is a refugee as defined by Section 5H(1) of the Act.
Accordingly, the Tribunal is not satisfied the applicant is a person in respect to whom Australia has protection obligations outlined in Section 36(2)(a) of the Act.
At the Tribunal is not satisfied the applicant is a refugee, as defined in Section 5H(1) of the Act, an assessment in respect to Section 5H(2) of the Act has not been made.
Complementary protection assessment
The Tribunal has considered the applicant’s protection claims (detailed above). The Tribunal has not been satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of significant harm. The Tribunal has found that there is no ‘real chance’ the applicant would suffer serious harm for the reasons he outlines if he returned to Vietnam. Having considered the country information (also discussed above) the Tribunal finds there is no real risk of the applicant facing significant harm, as defined in Section 36(2A), for the reasons claimed if he returns to Vietnam for the foreseeable future.
The applicant has not satisfied the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk the applicant will suffer significant harm (as outlined in Section 36(2)(aa) of the Act.
It follows, that the applicant is not a person in respect to whom Australia has protection obligations. An assessment in regard to Section 36(2C) has not been made.
Conclusions
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.

Nicholas McGowan

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5580

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