1711613 (Refugee)

1711613 (Refugee) [2019] AATA 6725 (9 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711613
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Anne Grant
DATE:9 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2019 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – conversion to Islam – particular social group – mixed religious marriage – single disowned Muslim woman – forced separation from family – social isolation in Vietnam – fear of physical assault – harm inflicted by the act of removal – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Carrascalao v MIBP [2017] FCAFC 107
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788
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 on 12 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 29 February 2016. The delegate refused to grant the visa on the basis that they were not satisfied that her fears of persecution in Vietnam were well-founded, or that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if she returned to Vietnam in the foreseeable future.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in her written application made the following claims:
·She came to Australia on a student visa but had to discontinue due to a lack of financial support from her parents. Her student visa was cancelled and she relocated to Victoria in the same year, where she met her husband.
·Her husband is a devout Muslim from [Country 1]. When she fell in love with him in 2014, she converted to Islam. They married in January 2016 and they now have a child.
·Her husband has lodged a claim for protection after arriving by boat because he is a Muslim from [Country 1].
·She has gone against the will of her parents, friends and relatives as well as her culture, by marrying a Muslim and converting to Islam. She fears isolation and retribution in Vietnam.
·She considers that forcing her back to Vietnam without her husband would be cruel. Separation of family units is a breach of Australia’s international obligations under international laws such as the ICCPR (International Convention on Civil and Political Rights) and the CROC (Convention on the Rights of the Child).
·She cannot return to [Country 1] with her husband because Muslims are persecuted there.
The applicant provided in support of her written claims her marriage certificate and her son’s birth certificate. Those documents reveal that the applicant married [Mr A] in an Islamic service in [2016], and her son was born on [date]. At hearing, the applicant also provided letters from Department of Home Affairs which demonstrate that [Mr A] and the child are both on Temporary Protection Visas, current until June 2020.
The applicant also confirmed that their second child is due in [a few] months from the date of the hearing.
In his written submission, the applicant’s representative made the following claims which might be considered to be in addition to the applicant’s claims above:
·The review applicant comes from a hard-line and strict Buddhist family in Vietnam. When she met and fell in love with her Muslim partner [Mr A], she contacted her family in Vietnam to inform them and to seek their approval and support in line with their culture. Sadly, her family strongly opposed her marriage to Muslim partner and her conversion to Islam. She was left to choose between her partner whom she loves so much and the demand made by her family in Vietnam. By converting to Islam and marrying a Muslim, the review applicant’s family believed that she has brought shame and dishonour to their family. Her family warned her against the serious consequences for turning to Islam.[1]
·The review applicant is fearful of persecution and harm she will face from her family in Vietnam if she returns there. She is also fearful of the persecution and discrimination she will face living in Vietnam as a single Muslim woman disowned and unsupported by her family in Vietnam.
·The review applicant’s partner and child are stateless [refugees] on a protection visa in Australia and they are unable as a family to flee to any other country including Vietnam.
·Muslims in Vietnam do not have a good relationship with the Vietnamese Authorities. Many Muslims have fled to Malaysia and Yemen due to persecution and discrimination they face in Vietnam. Muslims in Vietnam are forced to eat pork. They have also been sidelined economically compared to the country’s Kinh ethnic majority. Muslims lack education, employment opportunities, connections and access to state power.[2]
·The review applicant would face discrimination, persecution and a threat to her personal security and liberty in Vietnam. She fears returning to Vietnam without her child and husband who would have been her only male protection while in Vietnam.
·The Vietnamese authorities do not usually interfere in family matters.
[1] Representative submission page 2.
[2] Representative submission page 2. No citations for these statements are provided.
The hearing proceeded on 23 October 2019. The applicant and her representative attended, as did the applicant’s husband. The hearing was assisted by an interpreter in the English and Vietnamese languages. The applicant gave evidence first and then her husband joined the hearing and gave his evidence in her presence. He remained in the hearing after his evidence was completed as support for the applicant.
An interpreter was also booked in the [Language 1] language and [Mr A] gave evidence to the tribunal. During [his] evidence, it became apparent that the interpreter and [Mr A] had significant difficulty communicating. Further inquiry revealed that the interpreter’s first language was in fact [Language 2] and not [Language 1]. After some discussion with [Mr A], I ascertained that his English was at a level that enabled me to continue to hear his evidence as a witness. He completed his evidence and answered my questions in English.
In light of this difficulty, I also acknowledged during the hearing that the applicant may wish to submit an additional written statement from [Mr A] post hearing if she or her representative had any concern about or wanted to clarify his evidence with the assistance of a [Language 1] interpreter, though I did not require any additional information from him, as I accepted his evidence about his relationship with his wife. The applicant’s representative noted the possibility of providing additional evidence. No additional statement was received from [Mr A] after the hearing.
At hearing, I raised with the applicant that even though the delegate was satisfied that she had converted to the Islamic faith, I had some concerns about her conversion and her husband’s level of devotion, and that her faith was actually in issue before me.
I explained to the applicant that whilst I myself was not judging her for it, what caused me to question her own and her husband’s professed level of devotion to their faith was the fact that their son was clearly conceived prior to them being married. The reason this caused me concern was because Islamic religious law is very specific about forbidding intimate personal relations prior to marriage, and this somewhat conflicted with what she had said in her claims that her husband was a ‘devout Muslim.’ The applicant responded that she and her husband had already agreed to marry and so it didn’t matter to her whether the child was conceived before or after they did so.
The evidence before me reflects that the applicant married [Mr A] in an Islamic service [in] 2016. During the hearing, the applicant’s evidence about her decision to convert to the Islamic faith was surprisingly vague. She was unable to say what attracted her to the faith apart from her desire to marry [Mr A]. Further, despite repeated attempts, she was unable to describe a process of religious instruction prior to conversion of any kind.
When questioned about her decision to convert and her practice, the applicant struggled to name any faith beliefs of the Islamic faith and seemed unaware even of the name of the Qu’ran. She said that when they read from the holy book at Mosque, it was either in [Language 1] (which she doesn’t read) or in English, so she doesn’t really understand it. She considers that she is still learning. Ultimately, when asked questions about her new faith, the applicant kept returning to her evidence that in order to marry her husband, she had to convert. So she did.
During his evidence, [Mr A] also described a very vague ‘conversion’ process. He said that he and his wife met with the Imam who then made her a Muslim and they were married shortly afterwards. He considered that he was a devout Muslim and that in order to marry, his wife had to convert in line with his culture. When I asked him about the timing of his son’s birth and explained why that caused me some concern about the level of his devotion, [Mr A] agreed that it was indeed the wrong thing to have done according to Islamic Law and that was his mistake.
The applicant claimed that if she returns to Vietnam, she will be isolated from her family who know about the birth of her son but still do not accept the marriage or her conversion. She does not believe that she could return to live with them. She stated that she fears being isolated and discriminated against by her family and Vietnamese society including the authorities. When asked why she had such fears, she said that she recalled in the past seeing a news report (and later said it was more than one) where a senior official in her local area had beaten up a Muslim citizen. She fears that she too will be physically assaulted, due to her faith, in Vietnam.
She also fears that she and her husband will be unable to find employment due to their faith. The applicant also claimed that [Mr A] would not be allowed to enter Vietnam because of his Muslim faith. She claimed that she could not be separated from her husband and her child. The applicant also gave evidence that, even if her husband and son were allowed to enter Vietnam, setting up a new life in Vietnam would be too difficult. Her husband does not speak Vietnamese. They don’t know any other Muslims in Vietnam and they would have no family support.
[Mr A] gave evidence and stated that he would go where his wife went because the family was the most important thing for him, even if it were very difficult for him in Vietnam. He would not be separated from his family. The applicant and her husband became distressed when they talked about the possibility of their family being split up.
In relation to her Vietnamese family, the applicant said that they are Buddhists and that they regularly attend temple. She herself was not particularly religious and had not attended temple in Australia before her conversion. The applicant said her parents remain upset about her conversion to Islam. Nonetheless, she speaks to them via telephone and has sent them photographs of her son. She believes they will encourage her to abandon her faith and will isolate her if she doesn’t do so if she returns to Vietnam. In answer to my direct question about whether she feared physical or other harm from her family, the applicant denied that she did. Instead, she says she fears being estranged from them, and socially isolated because of that.
As I indicated to the applicant at hearing, I consider that the applicant does not demonstrate any depth of religious commitment, understanding or devotion, but I accept that to facilitate her marriage, she has technically embraced the Islamic faith and considers herself now a Muslim. She was noted to wear an Islamic head scarf at our hearing and I accept that she has accepted some external customs of her new faith. I have therefore accepted, for the purposes of this review, that the applicant would return to Vietnam as a convert to Islam, would be perceived as a Muslim and that she would continue to practice that faith on return.
I accept that the applicant is a Muslim, and that she converted in order to marry her husband, a [Muslim] from [Country 1]. I note that the applicant lived with her family before coming to Australia and confirmed that her parents are Buddhists and they do regularly attend temple. She also gave evidence that she herself was not ‘particularly religious’ in Vietnam or even in Australia before converting to Islam. Taking into account her evidence about her own self- described lack of religious commitment about religion in Vietnam, and her adamant statement that she does not fear harm from them apart from being pushed to abandon her new faith and potential isolation from her family, I am not satisfied that the information and evidence before me establishes that the applicant’s parents are ‘hard line’ Buddhists as claimed in the representative’s submission.
The applicant claims to fear that she will face discrimination and isolation due to her faith if she returns to Vietnam, whether or not she returns with her husband and child. She said she feared that she may not be able to find employment due to her faith. The perpetrators of this discrimination and ostracism are members of Vietnamese society, including her family, and also the Vietnamese Government. Her representative also argued that she would be vulnerable as a ‘single Muslim woman without a male ‘protector’’.
Country information
The most recent DFAT country information report in respect of Vietnam, published on 21 June 2017, does not specifically comment on the treatment of Muslims in Vietnam. On religious diversity in Vietnam, it states:
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.[3]
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.[4]
[3] 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade (DFAT), 21 June 2017, CISEDB50AD4597, 6.
[4] Ibid., 8.
On formal protections available to citizens who claim religious affiliation, the 2017 DFAT report made the following general observation:
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.[5]
[5] Ibid., 13-14

The most recent US State Department report on religious freedom in Vietnam, published on 21 June 2019 and covering the calendar year 2018, does not provide any detail on state persecution of Vietnam’s Muslim minority. It reports:
The U.S. government estimates the total population at 97 million (July 2018 estimate). According to statistics released by the Government Committee for Religious Affairs (CRA), 26.4 percent of the population is categorized as religious believers: 14.91 percent is Buddhist, 7.35 percent Roman Catholic, 1.09 percent Protestant, 1.16 percent Cao Dai, and 1.47 percent Hoa Hao Buddhist. Within the Buddhist community, Mahayana Buddhism is the dominant affiliation of the Kinh (Viet) ethnic majority, while approximately 1.2 percent of the total population, almost all from the ethnic minority Khmer group, practices Theravada Buddhism. Smaller religious groups that combined constitute less than 0.16 percent of the population include a devotional form of Hinduism, mostly practiced by an estimated 70,000 ethnic Cham in the south-central coastal area; approximately 80,000 Muslims scattered throughout the country (approximately 40 percent are Sunnis; the remaining 60 percent practice Bani Islam); an estimated 3,000 members of the Baha’i Faith; and approximately 1,000 members of The Church of Jesus Christ of Latter-day Saints (Church of Jesus Christ). Religious groups originating within the country (Buu Son Ky Huong, Tu An Hieu Nghia, Minh Su Dao, Minh Ly Dao, Tinh Do Cu Si Phat Hoi, Phat Giao Hieu Nghia Ta Lon) comprise a total of 0.34 percent. A small, mostly foreign, Jewish population resides in Hanoi and Ho Chi Minh City.[6]…
The government recognizes 38 religious organizations and one dharma practice (a set of spiritual practices) that affiliate with 15 distinct religious traditions as defined by the government. The 15 religious traditions are: Buddhism, Islam, Baha’i, Catholicism, Protestantism, Church of Jesus Christ, Hoa Hao Buddhism, Cao Dai, Buu Son Ky Huong, Tinh Do Cu Si Phat Hoi, Tu An Hieu Nghia, Phat Duong Nam Tong Minh Su Dao, Minh Ly Dao Tam Tong Mieu, Khmer Brahmanism, and Hieu Nghia Ta Lon Buddhism. Distinct denominations within these religious traditions must seek their own registration and/or recognition. Three additional groups – the Assemblies of God, Ta Lon Dutiful and Loyal Buddhism, and Vietnam Full Gospel Church – have “registration for religious operation” but are not recognized as official organizations.[7] [emphasis added]
[6] 'Vietnam 2018 International Religious Freedom Report', US Department of State, 21 June 2019, 20190625113215, 3-4 [Emphasis added].
[7] Ibid, 4 [Emphasis added].
In relation to the applicant’s claim to fear persecution due to being a single woman without a male ‘protector’, I note the following information from DFAT’s most recent report:
3.32 Article 26 of the Constitution guarantees male and female citizens equal rights in all fields, explicitly bans all forms of discrimination against women, and states that ‘men and women shall receive equal pay for equal work’. The National Assembly has also passed a range of domestic legislation including the Law on
Gender Equality (2006) and amendments to the 2014 Law on Land (effective 1 July 2014) and the 2014 Law on Marriage and Family (effective 1 January 2015) that improve the property rights of women in families.
3.33 Gender equality is identified as a priority in Vietnam’s Socio-Economic Development Plan and the Government has welcomed cooperation with development partners, including Australia, to advance gender equality and women’s empowerment.
3.34 Women make up almost half of Vietnam's labour force. However, some differences remain in the treatment of men and women in the workplace. Workplace laws surrounding pregnant and nursing mothers prevent women in those circumstances working the same hours as men or women without children. Women are expected to retire at 55 and men at 60. There are extensions provided for both men and women, though the age discrimination persists. Anecdotal reporting also suggests wages and promotion rates for women are much lower than men.
3.35 In July 2015, a UN committee reviewed Vietnam’s implementation of the UN Convention on the Elimination of Discrimination against Women (CEDAW). The committee found that Vietnam ‘has made extensive legal commitments to guarantee women's rights on paper but has taken no steps to enforce or protect them in practice’. The committee also expressed concern over the high prevalence of violence against women and girls; recommending that the country’s leaders amend legislation ‘with a clear resolve to criminalize all forms of violence against women, including marital rape and sexual harassment.’
3.36 The Government has initiated programs aimed at reducing domestic violence, such as training for police officers, lawyers and legal system officials in the legal framework and rights of victims of domestic violence. Nonetheless, domestic violence against women remains a serious problem in Vietnam. Exact figures and statistics are difficult to obtain due to victims’ reluctance by victims to approach authorities for fear of shaming their family, together with patriarchal attitudes and gender stereotypes regarding the roles and responsibilities of women in Vietnamese society. Credible reports by the UN and International Federation for Human Rights (FIDH) conclude that the frequent use of reconciliation methods favours men over women and the victim is often left with no access to justice and legal remedies. Domestic violence incidents that are reported are treated as civil cases by authorities, unless the victim suffers injuries to more than 11 percent of the body.
The applicant’s legal representative lodged a written submission on 16 October 2019. I have considered the information in that submission and discussed aspects of the submission with the representative and the applicant at hearing. I noted that the submission contained multiple assertions about persecution of Muslims in Vietnam, including a claim that they were ‘forced to eat pork’ that ‘they have been sidelined economically, lack education, employment opportunities, connections and access to state power’ and ‘face discrimination and persecution’, but that these assertions by the applicant’s representative were not supported by reputable (or any) reports or citations. In response, the applicant’s representative suggested that his submissions were based on ‘general internet research’ and he could not provide any specific citations. In light of that discussion, I offered the applicant and her representative a further two weeks to lodge any additional material which they wanted me to consider, particularly any country information in support of the representative’s submissions that Muslims in Vietnam are subjected to religious persecution and discrimination.
On 31 October 2019, the Tribunal received an email repeating part of the representative’s original submission –referring to a Full Court of the Federal Court case about cancellation of a visa and urging the tribunal to give proper genuine and realistic consideration to the merits of the applicant’s claims as follows:
·I refer the Tribunal to a Full Federal Court decision that relates to a character case where the Court held that 40 minutes was not enough time to give realistic consideration to the matter. In Carrascalao v MIBP [2017] FCAFC 107, the Minister's decision to cancel the visa holder's visa was overturned by the Full Court for a second time. The Minister cancelled the visa within 40 minutes of the Court's decision because he believed it was in the national interest to do so as the visa holder had been involved with an unlawful motorcycle gang and had a long criminal record. The Full Court held that the Minister had not given proper, genuine and realistic consideration to the merits of the case in light of the volume of submissions and information that had been provided to him. The Court held that the ramifications of the visa cancellation on the visa holders, their families and others warranted careful consideration and active intellectual engagement by the Minister. Likewise, I ask the Tribunal to give proper, genuine and realistic consideration to the merits of application before it in light of the review applicant's claims and the attached reports on Vietnam about religious persecutions by independent international organizations, noting that the ramifications of a visa refusal on the visa applicant and her family unit in Australia, warrant careful consideration and active intellectual engagement by the Tribunal. While the context of this case and Carrascalao is different, it is arguable that the plight the review applicant and her family would face if she is returned to Vietnam, warrants a high level of care, attention and consideration. Thus, it is incumbent on the Tribunal to turn its mind to how the review applicant's conversion to Islam and her marriage to a [Muslim from another culture] would affect her ability to return to Vietnam where she may face persecution and uncertain future. I note that Vietnam is classified by Human Rights Organization as a "country of particular concern" due to its records of ongoing religious persecution.
Attached to this submission was a press release dated 29 April 2019 entitled: USCIRF Releases 2019 Annual Report and Recommendations for World’s Most Egregious Violators of Religious Freedom. This report names Vietnam as a recommended addition to the list of countries of particular concern but does not provide any other information about the reason for that addition.
Attached to this submission was a Radio Free Asia report dated 29 April 2019 entitled “US Religious Freedoms Panel Calls for Vietnam Listing as ‘Country of Particular Concern.” This article includes the following specific information about Vietnam: (the remainder of the article addresses religious freedoms concerns in China, Myanmar and Laos).
Religious freedom conditions last year “trended negative,” USCIRF said, adding that 244 prisoners of conscience held in Vietnam’s jails at year-end included “some who advocated for freedom of religion or belief, and others who simply professed or practiced their faith.”
Local authorities continued to seize property from Catholic churches, Buddhist temples, and other religious groups for economic development projects without providing just compensation,” USCIRF said, while police harassed religious leaders of different faiths for attending religious conferences overseas or for meeting with foreign diplomats.
Based on these systematic, ongoing, egregious violations of religious freedom, USCIRF again finds that Vietnam merits designation in 2019 as a ‘country of particular concern,’ or CPC, under the Religious Freedom ACT (IRFA), as it has recommended every year since 2002,” the rights monitoring group said.
Also attached to the agent’s submission was a statement of the testimony of the Commissioner, USCIRC on the Persecution of religious and indigenous communities in Vietnam, dated 26 March 2014. This statement refers to instances of violations of freedom or religion or belief and state oversight and regulation of religious freedom in Vietnam but refers to faiths other than Islam. (Buddhist, Catholic, Protestant faiths).
Also attached to this submission was an article by Human Rights’ Watch entitled Vietnam Events of 2018. This article outlines a described ‘worsened’ human rights record in 2018. Under the heading ‘Freedom of Religion’ (highlighted by the applicant’s representative), this article notes:
The government restricts religious practice through legislation, registration requirements, and surveillance. Religious groups are required to get approval from, and register with, the government, and operate under government-controlled management boards. While authorities allow many government-affiliated churches and pagodas to hold worship services, they ban religious activities that they arbitrarily deem to be contrary to the “national interest,” “public order,” or “national unity,” including many ordinary types of religious functions.
Police monitor, harass, and sometimes violently crack down on religious groups operating outside government-controlled institutions. Unrecognized branches of the Cao Dai Church, Hoa Hao Buddhist Church, independent Protestant and Catholic house churches, Khmer Krom Buddhist temples, and the Unified Buddhist Church of Vietnam face constant surveillance, harassment, and intimidation.
Followers of independent religious group are subject to public criticism, forced renunciation of faith, detention, interrogation, torture, and imprisonment. In February 2018, authorities tried and convicted five independent Hoa Hao Buddhist practitioners including Bui Van Trung and his son Bui Van Tham, and sentenced them to between three and six years in prison for criticizing the government and staging a public protest against religious repression.
In June, men in civilian clothes broke into the house of Cao Dai religious activist Hua Phi in Lam Dong province, where they beat him and cut off his beard. In September, under police pressure, 91-year-old prominent religious leader Venerable Thich Quang Do was forced to leave Thanh Minh Zen Monastery in Ho Chi Minh City to return to his hometown in Thai Binh province.
Montagnards in the Central Highlands face constant surveillance and other forms of intimidation, arbitrary arrest, and mistreatment in custody. In detention, authorities question them about their religious and political activities, accuse them of allegiance to exile organizations, and discourage any efforts to flee Vietnam.
Consideration of claims and evidence.
On the evidence before me, including the applicant’s own direct evidence, I do not accept the applicant’s claims (as contained in her representative submission) that there is a real chance that she will suffer physical assault, abuse or harassment by her family on her return to Vietnam due to her conversion to Islam or because of her marriage or for any other reason. I accept that there is some chance that she might face some pressure from them to abandon her new faith and that she may become estranged from them as a consequence of their failure to accept that new faith. I note and have taken into account that she remains in contact with them despite her conversion, marriage and bearing a child of the marriage, although I accept her evidence that her family relationship is strained. I consider that it is possible that she may suffer a permanent estrangement and isolation from her family on her return due to her refusal to abandon her new faith. However, even if that occurs, I do not accept that estrangement from or tension within her family in Vietnam is a harm which would amount to causing the applicant serious harm, because she is an independent, married woman who has already lived apart from her family for several years. I do not accept the claim that there is a real chance of her being subjected to serious harm now or in the reasonably foreseeable future by her family on return to Vietnam because of her conversion, her marriage or her faith.
My consideration of the country information available about religious discrimination or persecution in Vietnam, the most pertinent of which is extracted and referred to above, (and including the references provided by the applicant’s representative) did not disclose any specific material which supports the applicant’s claims that Muslims in Vietnam face a real chance of persecution from members of the Vietnamese community or authorities for reason of their Islamic faith or conversion to that faith. I reject as unsupported claims her representative’s submissions suggesting that Muslims in Vietnam are required to eat pork, that they lack education, employment opportunities, connections and access to state power, and that the applicant would face discrimination, persecution and a threat to her personal security and liberty in Vietnam as a Muslim. After considering the applicant’s evidence, her representative’s submissions and the country information as a whole, I am not satisfied that the applicant has established that is a real chance that the applicant will suffer discrimination or harm on the basis of her faith, her conversion to Islam or her marriage to a Muslim man now or in the reasonably foreseeable future in Vietnam. I find that the applicant’s fear of persecution in Vietnam for reason of her faith is not well founded. I do not accept the applicant’s claim that she faces a real chance of persecution in Vietnam (from her family, from society or from any Government authority) because of her faith, her conversion to Islam or her marriage to a Muslim man, whether those claims are considered individually or cumulatively.
In relation to the claim that she will suffer persecution because she is a ‘single Muslim woman without a male protector’, I have carefully considered the country information (referred to above) and the evidence. I find that she would be returning (and potentially alone) as a married woman and not as a ‘single woman’. As a woman alone, in the event that she is unable to return to live with her family, she may be perceived as a single woman. In any event, I do not consider that the general country information reflects that women are vulnerable to being targeted for persecution if they are ‘single’, whether or not they are ‘without a male protector.’ I have considered the information in DFAT’s report about Vietnam’s approach to gender equality and legislation for equal rights for women, and noted the reference in paragraph 3.35 that a UN committee in 2015 has expressed a concern with the ‘high prevalence of violence against women and girls.’ I do not accept that the country information reflects that ‘single women’ are particularly vulnerable to violence in Vietnam or that they need a ‘male protector’ as suggested by the applicant’s representative. I also note that the applicant herself did not refer to this claim in her evidence before me. I consider the chance of the applicant suffering persecution as a single woman without a male protector on her return to Vietnam to be remote. After considering the country information and evidence before me as a whole, I do not accept the applicant’s claim that there is a real chance that she will face persecution in Vietnam if she returns as a woman on her own with no male protector, even in the event that she is unable to rely on her family for emotional and financial support.
The applicant has claimed that she will experience considerable distress if she were separated from her husband and son and returns to Vietnam without them. I accept that this is the case. Based on her husband’s evidence that he will follow her if possible wherever she is, I do not accept that it is certain that the applicant will be separated from her husband and child if she must return to Vietnam. Nonetheless, if that is what occurs (due to migration restrictions or for any other reason) and assuming for this purpose that such distress causes the applicant serious harm, I consider that such harm would be a consequence of the refusal of her protection visa and would not be for one of the reasons in s.5J(1)(a), nor would it involve systematic and discriminatory conduct as required by s.5J(4).
I have considered the applicant’s claims cumulatively and individually, and am not satisfied that there is a real chance that the applicant will suffer persecution in Vietnam, now or in the reasonably foreseeable future.
The information and evidence before me does not raise any other claims to fear persecution for one of more of the reasons in s.5J(1)(a). The applicant is not a refugee as described in s.5H(1) of the Act.
Complementary Protection
The applicant claims that she will be estranged and isolated from her family in Vietnam, face discrimination in employment and opportunity because of her faith and because she would be a single woman without male protection; and also that she would suffer emotional distress if she is separated from her husband and son when she is removed to Vietnam. I refer to and rely on my findings about the applicant’s claims and the country information discussed above, and also my discussion of the applicant’s evidence and that of her husband.

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33.
The applicant fears that she will suffer significant harm in the form of discrimination, social isolation and pressure to abandon her new faith from her family, members of the Vietnamese Community and the Vietnamese Government if she returns to Vietnam. I consider that there is some doubt that the harms she fears would amount to significant harm as that term is defined in s.36(2A) of the Act, even considered cumulatively. In any event, taking into account the country information and the applicant’s own evidence, I do not accept that there is a real risk that she will suffer significant harm on the basis of her faith, her conversion to Islam or her marriage to a Muslim man now or in the reasonably foreseeable future in Vietnam.
I accept that there is a real risk that she will suffer estrangement and alienation from her family, or face pressure to abandon her new faith as a consequence of her being returned to Vietnam. I have considered whether such estrangement, alienation and pressure would amount to causing the applicant significant harm. I do not consider that the evidence before me reflects that there is any risk that the applicant will be arbitrarily deprived of her life, subjected to torture or to the death penalty. I have noted the definition of degrading treatment or punishment and cruel and inhuman treatment or punishment in s.5 of the Act. I am not satisfied that the evidence before me (that the applicant may face some pressure to abandon her faith, be estranged from and isolated from her family) is at a level which I consider could be considered to be cruel and inhuman or degrading treatment or punishment. I therefore conclude that there is not a real risk of the applicant suffering significant harm from her family on return to Vietnam. I therefore conclude that there are not reasonable grounds for believing that there is a real risk of the applicant suffering significant harm from her family, or from unknown members of society or the Vietnamese Authorities if she is returned to Vietnam, due to her religion, her conversion or her marriage.
I have also considered whether there is a real risk of the applicant suffering significant harm as a single woman without a male protector as a necessary and foreseeable consequence of her being returned to Vietnam. I refer to my earlier discussion above on this issue when considering the real chance test under the refugee provisions. Whilst the country information reflects some workplace inequity for women and general concerns about domestic and other violence against women, women in Vietnam are guaranteed equal rights in all fields, discrimination against women is banned, and women are entitled to equal pay for equal work. I note that Gender equality is identified as a priority of Government and women make up half of Vietnam’s labour force. Even allowing for differences in treatment outlined in the country information and concerns about domestic violence, I consider that the country information does not reflect endemic, institutionalised or societal tolerance for such conduct by Vietnamese authorities and society. In addition, I consider that there is nothing in the applicant’s personal circumstances which suggests that she would face any particular or specific risk of such discrimination or violence (from members of society generally or her own family) and I am not satisfied that there is any such risk. I find that there is not a real risk that the applicant will suffer significant harm as a single woman in Vietnam without a male protector, even if she is alienated from her family and without their (or any other person’s) financial, practical and emotional support.
I acknowledge that the applicant would experience considerable distress if she were separated from her husband and son. Based on her husband’s evidence, I do not accept that it is certain that the applicant will be separated from her family as a necessary and foreseeable consequence of her being returned to Vietnam.
However in the event that she did experience separation from them (perhaps because [Mr A] and their son are unable to enter or remain in Vietnam, or for some other reason), the Tribunal has considered if the act of removing the applicant from Australia to Vietnam itself, away from her husband and child, would meet the definition of causing the applicant ‘significant harm’ in s.36(2)(aa) and s.5(1). However for the reasons that follow the Tribunal also does not accept that the actual act of removal of the applicant from Australia falls within the scope of s.36(2)(aa), as it would appear from the words of s.36(2)(aa) and s.5(1) that these provisions do not encompass harm of this nature.
In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[1] The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[2] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.[3] Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[4] Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[5]
[1] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.
[2] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].
[3] Ibid at [63].
[4] Ibid at [64].
[5] Ibid at [65].
Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
Having considered the applicant’s claims individually and cumulatively, I am not satisfied that there are substantial reasons for believing that, as a necessary and foreseeable consequence of her being removed to Vietnam, there is a real risk that the applicant will suffer significant harm.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).
I have considered whether 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 of the same class as that applied for by the applicant (as required in s.36(2)(c)). The applicant’s husband and child each hold a temporary protection visa. However, sections 35A(2) and (3) describe the classes of protection visas and specifically denote a permanent protection visa (as applied for by the applicant) as one class of protection visa and a temporary protection visa (as held by the applicant’s husband and child) as another class of protection visa. I find that the applicant does not satisfy s.36(2) because she is not a member of the same family unit as a person who holds a protection visa of the same class as that applied for by the applicant.
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.
Anne Grant
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.
…

[2019] AATA 6725

9 December 2019

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