1712021 (Refugee)

[2019] AATA 6327

1712021 (Refugee) [2019] AATA 6327 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712021

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jason Pennell

DATE:9 August 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made at 2.00pm on 9 August 2019

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – family’s anti-Communist views – religion – Buddhism – alleged discrimination and surveillance by the authorities – failure to attend scheduled hearing – credibility concerns – delay in seeking protection – available country information – religious freedom conditions – obtained passport and departed country without hindrance – returned asylum seeker – household registration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425, 441A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379  
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 October 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant.

3. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 9 August 2019 at 10.30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders to a number provided by the applicant, about the hearing 5 business days and one business day before the scheduled hearing.

4. The applicants did not appear before the Tribunal on the day and scheduled time and place of the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender. On 5 August 2019 the Tribunal received the applicant’s response to hearing invitation confirming that he was to attend the hearing at the scheduled date and time. No satisfactory reason for the non-appearance has been given.

5. Having reviewed the applicant’s application for protection visa, the department file and the available country information the Tribunal has decided to exercise its discretion to proceed to determine the applicant’s application for review on the information and material currently before it.  

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

RELEVANT LAW

1. 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.

2. 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.

3. 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.[1] 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[2].

   [1] s.5H(1)(a) of the Migration Act 1958

   [2] s.5H(1)(b) of the Migration Act 1958

4. 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.

5. 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.

6. An applicant is considered not to be at a real risk of suffering significant harm in a country if:

   ·it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm;[3] or

   [3] Migration Act 1958 s.36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

   ·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]

   [4] Migration Act 1958 s.36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Identity and country of reference

1. The applicant is a [age] year old male, born [date] in Tuy An district, Phú Yên province, Vietnam. Applicant is a citizen of Vietnam by birth. A copy of the applicant’s Vietnamese passport is on the department file.[5] There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicant is a citizen of Vietnam and that as such his  protection claims will be assessed against Socialist Republic of Vietnam as the country of reference and his 'receiving country'.

   [5]   Department file [number] @ f. 56

2. The applicant claims to fear harm on the basis of his imputed political opinion, as his parents were strongly anti-Communist, and his Buddhist religion.

Migration history

1. Applicant arrived in Australia [in] June 2008 on a [visitor] visa. His visa expired [in] September 2008, when the applicant became unlawful.

2. Applicant applied for a Protection (Class XA) visa on 26 October 2015. Time between visa cessation and application is 2,593 days or seven years, one month and seven days. Associated Bridging C visa granted day following protection application; 27 October 2015.

Delay

1. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[6] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[7]

   [6]    Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [7]    Subramanium v MIMA (1998) VG310 of 1997.

2. In this case the applicant arrived 19 June 2008 on a Sponsored Family Visitor Subclass (UL-679) visa and became unlawful on 19 September 2008. The applicant has offered no reasonable explanation for the delay in making his application for protection. From the applicant’s evidence it seems that the issues relating to his religion and any communist view were evident at the time he arrived in Australia. In such circumstances there seems to be no reasonable explanation for the delay in making his application for protections.

3. Accordingly, given the extensive delay of approximately 7 years in making his application for a protection visa the Tribunal placed some weight against the applicant in regard to this matter.

Applicants Claims

1. Applicant’s claims for protection are contained in his protection visa application, dated 26 October 2015, and a written submission dated 20 October 2015[8]. No department interview was offered to the applicant. The applicant’s protections claims were detailed by the delegate in his decision dated 18 May 2017[9] and can be summarised as follows:

   [8] Department file No [number] @ff. 20-40

   [9] Op Cit @ f64

   (a)Applicant came to Australia in June 2008 and did not return to Vietnam before his visitor visa expiry due to his fear of persecution. He fears that because he is a Buddhist he will not be able to openly practice Buddhism in Vietnam.

   (b)His parents were born in pre-unification South Vietnam; they practiced their faith freely until unification in 1976, after which they practiced in secret.

   (c)Applicant’s family were strongly anti-Communist.

   (d)Due to their faith and politics, the applicant claims the family were ill-treated by the authorities, struggled to get housing and jobs, and put under surveillance.

   (e)His father took part in protests and told him he was arrested a number of times. Due to persecution and discrimination his parents and [number of] siblings departed Vietnam in 2009 and moved to [Country 1].

   (f)Applicant fears that if he is returned to his Country of Origin, Vietnam, he will be persecuted for his imputed political opinion and Buddhist belief; additionally, he will be viewed as a returned asylum seeker.

COUNTRY INFORMATION

23.In assessing this decision the Tribunal has considered the following country information.

Religion

24.According to the US State Department International Religious Freedom 2017 annual report – Vietnam:

‘The Vietnamese government has taken notable steps to improve religious freedom conditions in the country. Many individuals and religious communities are able to exercise their religion or beliefs freely, openly, and without fear. In many communities, religious organisations and local officials get along well, with little to no government interference. Country is home to a wide diversity of faiths. The majority of Vietnam’s more than 94 million people practice or identify with Buddhism. Estimates vary widely but more than 6 million Vietnamese are believed to be Catholic, more than 1.5 to 3 million are a Hao Hao Budhists, approximately one to two million are Caodaist approximately one to two million are Protestant. Smaller numbers are Khmer Krom Buddhist, Muslim (including ethnic Cham Muclims) Hindu, Baha’i, Mormon and Falun Gong as well as practitioners of local religions or other forms of traditional worship.

In general religious organisations recognised by the government fare better than unrecognised groups. Despite clear improvements, the Vietnamese government either directs or allows harassment or discrimination against unregistered, independent religious organisations, particularly those that are at advocate for human rights and all religious freedom. This is a disconnect between the central government’s overtures to improve religious freedom conditions and the ongoing actions taken by local officials, public security, and organise thugs to threaten physically harm religious followers and their houses of worship or other religious property.

In general the Vietnamese government continues to crack down on anyone challenging its authority, including lawyers, bloggers, activists, civil society and religious organisations.’

25.The 2017 DFAT Report[10] states the following information regarding religious demography and activity:

[10] DFAT County Information Report Vietnam 21 June 2017

‘Religion

3.6 Article 24 of the Constitution states that all people have the right to freedom of belief and religion, and have the right to follow any religion or to follow no religion. In addition, all religions are equal before the law; the State respects and protects freedom of belief; and ‘no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the laws’. However, as with political opinion, these rights are conditional. The Penal Code 1999 establishes penalties for practices that, in the Government’s view, undermine peace, national independence and unity. The Government’s routine application of these laws in practice leads to limits on religious freedom, particularly with regard to unregistered organisations.

3.7 A new Law on Belief and Religion was passed by the 14th National Assembly (November 2016), providing modest improvements to the restrictive regulatory environment for religious practice. This law replaces the 2004 Ordinance on Religion and Belief (Ordinance 21) and the revised Implementation Decree 92 (promulgated in January 2013). The new law shifts the regulation process in multiple areas (e.g. attendance at seminary, ordination, hiring of clergy) from an approval system to a less burdensome notification system, allowing it to move forward with such activities, without explicit government approval. The amount of time a religious organisation must carry out religious activities as a condition for national-level recognition has been reduced from 23 years to five years.

3.8 The treatment of religious groups varies widely across different areas of the country and is further dependent upon their relationship with the Government. The CPV maintains a strong atheistic stance against religion; however, Vietnam is traditionally a Buddhist country, with more than half of the current population (majority Kinh ethnicity) considering themselves to be adherents of Mahayana Buddhism. According to the US Department of State’s 2016 report on religious freedom, the Government continued to monitor the activities of some religious groups, mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism. Local authorities regularly blocked religious gatherings and temporarily detained members of some unregistered groups, especially in ethnic minority regions. DFAT is also aware of credible reports of local authorities either delaying or denying applications for approval and recognition of religious groups with no reason provided.

Hoa Hao Buddhists[11]

[11] DFAT Report @ p14

3.17 Hoa Hao Buddhists constitute 1.5-3 percent of the total population (approximately 1.3 to 2.8 million) and is one of 14 distinct religions that hold full government recognition and registration. However, some adherents do not participate in government-recognised groups. The government-sanctioned Central Committee of Hoa Hao Buddhism is located in An Giang province in the Mekong Delta area, the birthplace of the religion’s founder, Prophet Huynh Phu So. His birth date is a significant celebration day for followers each year on 25 November. An important aspect of the faith is the emphasis of practising at home or while tending your land, given most followers are farmers. The religion favours grassroots aid work over temple worship or elaborate ceremonies.

3.18 Many followers refuse to join the government-sanctioned Hoa Hao Buddhist organisation due to authorities’ tight control over the central committee. Human rights defenders reported that plain-clothes police continue to monitor and harass leaders of unregistered Hoa Hao groups. In August 2016, a member of the unregistered Hoa Hao group that operates outside government control was released from prison after serving a two-and-a-half-year sentence. He was arrested in 2014 and charged with creating a ‘serious obstruction to traffic’ while he and a colleague were on their way to visit a former political prisoner.

3.19 DFAT assess that individuals who engage in open criticism of the government-sanctioned Central Committee of Hoa Hao Buddhism or the authorities in An Giang province have a high risk of harassment, destruction of property and pressure to join the government-sanctioned groups. Followers who practise their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from authorities.’

Political Opinion (Actual or Implied)

3.20 Article 4 of Vietnam’s Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, with very few formal avenues for political participation. Only two self-nominated candidates in the National Assembly Elections of 22 May 2016 were elected out of a total of 496 elected candidates.

3.21 Vietnam’s Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration; however, these are restricted by a number of ‘national security’ provisions within Vietnamese law. In practice, the Government does not tolerate political expression against the CPV, the Government or its policies. On 9 June 2016 the European Parliament adopted resolution 2016/2755(RSP) on Vietnam that called upon the Government to put an immediate stop to all harassment, intimidation, and persecution of human rights, social and environmental activists. It insisted that ‘the government respect these activists’ right to peaceful protest and release anyone still wrongfully held’.

Political Activists[12]

[12] DFAT Report @ p14

3.22 The Government has used specific laws to curb dissent, such as Article 79 of the Penal Code (‘overthrowing the State’), Article 88 (‘conducting propaganda against the State’) and Article 258 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’), all of which in practice take precedence over constitutionally enshrined rights. These offences carry penalties ranging from prison sentences of between six months and 20 years; to life imprisonment or capital punishment. DFAT is not aware of any recent cases of the death penalty being applied for political activities.

3.23DFAT is aware of at least 19 reported convictions of political/human rights activists in 2016. The convictions resulted in a total of more than 70 years in prison for the abovementioned offences, as well as the use of Article 245 of the Penal Code (‘causing public disorder’) and Article 87 (‘undermining national unity’)

3.24 Increased suppression of political activism generally coincides with high-level events, such as the lead up to the National Party Congress, National Assembly Elections, and with other significant issues affecting the country, such as the South China Sea disputed territories and the mass fish death crisis in April 2016.

Supporters and protesters[13]

[13] DFAT Report @ p16

3.28 Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.

3.29 DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.

TREATMENT OF RETURNEES [14]

[14] Op cit @ p.24

5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea……..’

Exit and Entry Procedures

5.18 The Vietnamese Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’ (Article 23). In practice, the Government imposes limits on the movement of some individuals, particularly foreign travel by high profile political activists. Authorities often confiscate passports or deny issuance of passports for people the Government deems a threat to national interests. The Department of Immigration, part of the Ministry of Public security, is responsible for the issuance of passports and visas, as well as monitoring citizens migration to and from Vietnam

5.19 The General Department of Customs, under the Ministry of Finance (MoF), is responsible for controlling the entry and exit of citizens and foreigners at airports. Airport control generally operates smoothly in all major cities and towns, however, corruption reportedly remains a problem. In 2015, a corruption hotline was established in Ho Chi Minh City in an attempt to reduce bribery at customs control points.

5.20 Internal and external relocation continues today due to decreasing sources of livelihood, as a result of environmental factors such as land degradation and non-natural disasters such as the mass fish deaths in April 2016 caused by a toxic waste spill at Taiwanese-owned steel company, Formosa Ha Tinh Steel Corp, in Ha Tinh province.

Conditions for Returnees

5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.

5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In this case the applicant did not appear before the Tribunal to give evidence. Nevertheless the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. 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[15]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[16]

   [15] s.5AAA Migration Act 1958.

   [16]   MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[17] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [17]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[18] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

   [18]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

The Applicant’s evidence.

1. By his application for protection and his evidence to the delegate, the applicant stated that he was born in Vietnam on [date]. The applicant states that he speaks, reads and writes English and Vietnamese.

2. By the applicant’s statement attached to his protection visa application he claims that his mother and father moved to [Country 1] in or about 2009 together with his [siblings]. However, in his application he only lists [number of] brothers living in [Country 1]. In addition the applicant lists his son, born on [date], as remaining in Vietnam but makes no reference to ever having been married.  The Tribunal notes that in his [visitor] visa application in 2008, the applicant referred to his son and stated he would be cared for by his parents.

3. The applicant states that he attended [Educational Institute 1] from [Year 1] to [Year 2] and [Educational Institute 2] for [Year 2] to [Year 3]. The applicant lists that he attended [Educational Institute 3] in Vietnam from [Year 3] to [Year 4] but does not refer to any course of study. The Tribunal was not able to find any reference to [Educational Institute 3] via a search on the internet.  Finally the applicant states that he then worked as a [Occupation 1] from [Year 4] to 2008 before arriving in Australia.

4. The applicant claims that his parents very strong Buddhists and practiced their religion in Vietnam prior to the unification in 1976 and later in secret. He states that his siblings are practicing Buddhists.

5. In addition he claims that his parents and the rest of his family were very strong anti-communists. He states that his family suffered at the hands of the communists and government authorities as a result of their Buddhist beliefs. He claims that he and his family were discriminated and against and under constant surveillance by the government authorities. The applicant did not provide any details or supporting evidence in relation to the alleged discrimination and surveillance. The applicant claims that he has continued to be a practicing Buddhist while in Australia, but did not provide any evidence to the department or the Tribunal in support of his alleged practice of his faith.   Nevertheless the applicant claims that if he is to return to Vietnam he will be persecuted because of his imputed political opinion and religion. That is as an anti-communist and a Buddhist.

6. In addition he claims that he will have difficulty with gaining his residential registration and that he will be viewed as a returned asylum seeker.

The Accepted facts

1. Having considered the applicant’s evidence and the relevant country information the Tribunal accepts and finds that:

   (a)  The applicant was born [date] in Tuy An district, Phú Yên province, Vietnam.

   (b)  The applicant is a citizen of Vietnam by birth.

   (c)   The applicant is Buddhist.

   (d)  The applicant speaks English and Vietnamese.

   (e)  The applicant’s mother and father together with [number of siblings] moved to [Country 1] in or about 2009 and continue to reside there.

   (f)    The applicant has a son born on [date] residing in Vietnam.

   (g)  The applicant attended [Educational Institute 1] from [Year 1] to [Year 2] and [Educational Institute 2] from [Year 2] to [Year 3].

   (h)  The applicant worked as a [Occupation 1] prior to arriving in Australia.

Applicants Relevant Grounds

1. The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act by reason of his religion as a Buddhist and by reason of this political opinion as an anti-communist and returnee asylum seeker. In this case the Tribunal accepts that the applicants claims fall within the scope of s.5J(1) of the Act.

Applicant’s well-founded fear.

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. In Chan v MIEA[19] the Court when considering ‘well-founded fear’ for the purposes of the Convention held that it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[20]

   [19] (1989) 169 CLR 379 at 396.

   [20] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.

41.However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s [21]claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [22]stated:

“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

42.In MIEA v Guo, the Court stated that: ^[23]

‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

43.In this case the applicant claims that if he is returned to Vietnam there is a real chance he will suffer serious harm by the authorities by reason of his religion as a Buddhist and as a result of the political opinion as anti- communist.  By reason of the applicant delay and the available country information in relation to the applicant’s religion and political activities the Tribunal has considerable difficulty in accepting that the applicant has a genuine fear of being harmed in the event he is returned to Vietnam.

Applicant’s Claim as a Refugee

As a Buddhist.

[21]  ACIC letter dated 12 December 2018 AAT file No 1905388 @ f 85

[22]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

[23]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

1. The applicant claims that in the event that he returns in Vietnam there is a real chance he will be seriously harmed by reason of the fact that he is a practicing Buddhist. He claims that his family were suffered discrimination and were under surveillance by the authorities as a result of practicing their faith as Buddhists. However, the applicant only provided minimal detail as to his and his family’s situation. He failed to provide any details such as dates, names and locations of where they may have suffered such discrimination or surveillance. In addition he did not provide any documentation to corroborate his claims, such as reasons why his family had to practice their Buddhist faith in secret, evidence that his parents moved to the United States to escape persecution rather than for economic or family reasons, or why it was safe to leave his son in Vietnam if he feared persecution.

2. Finally, the applicant has not provide any details in relation to his son, such as where and with whom the son now is residing given that his parents are no longer in Vietnam.

3. Despite the vague nature of the evidence provided in his application in relation to the applicants practice as a Buddhist, the country information does not support the applicant’s claim. The country information makes it clear that the Vietnamese government has taken notable steps to improve religious freedom conditions in the country. It notes that individuals and religious communities are able to exercise their religion or beliefs freely, openly, and without fear and that the majority of Vietnam’s more than 94 million people practice or identify with Buddhism.[24] 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.[25] There was no evidence that the applicant was a member of any unregistered or ethnic minority group.

   [24]The US State Department International Religious Freedom 2017 annual report – Vietnam:

   [25] DFAT Report 2017

4. Therefore, there appears no basis for the applicant claim that he will be persecuted by reason of his religion in the event that he returns to Vietnam. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason his religion upon his return to Vietnam.

The Applicants anti-communist political opinion.  

1. The applicant claims that because he holds anti-communist beliefs that he will be persecuted in the event that he is returned to Vietnam. The Tribunal accepts that country information which indicates that the Vietnamese Government does not tolerate political expression against the Communist Party of Vietnam, the Government or its policies.[26] However, the applicant did not provide the department or the Tribunal with any evidence of him having expressed any political views publically either in Vietnam or in Australia. He did not provide any documentary evidence by which it may be claim that he had expressed his views of being an anti-communist in a manner that would be contrary to the interests of the Vietnamese Government or the Communist Party itself. There was no evidence that he had been politically active against the state of Vietnam in either in Australia or Vietnam. For example there was no evidence that he was a member of a political party or organisation through which he had expressed his views against the State of Vietnam.  Rather, the applicant was a former [Occupation 1] in Vietnam who has resided unlawfully in Austral for approximately seven years and claims to be unemployed.

   [26] DFAT Report 2017

2. The country information cited above clearly states that the Government of Vietnam prevents the exit and entry of those individuals considered to have anti-government political profile. Given the fact that the applicant was able to obtain a passport and depart Vietnam without hindrance indicates that he had no political profile in Vietnam. That is he was not at an adverse interest to the Vietnamese authorities and had no adverse political profile as claim. As such the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of his political opinion in the event he returns to Vietnam.

3. Therefore, having considered the applicant’s evidence, the available country information and his delay in making his application for a Protection Visa the Tribunal is not satisfied that that that there is a real chance the applicant will be seriously harmed in the event that he returns to Vietnam by reason of his religion political opinion or for any other reason. As such the Tribunal finds that there is no real chance of persecution for one or more the root more one or more of the reasons mentioned in section 5J1 a of the act in the receiving country.

4. As such, the Tribunal finds that the applicant is not refugee as defined in s.5H of the Act and the criteria in section 36(2)(a)  of the Act is not satisfied for this reason. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36.2(a).

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

1. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to China by reason that he has provided information on Chinese organised crime abroad and/or is a person with perceived links to organised crime in China.

2. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[27] It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in China by reason of him providing the information to the ACIC as a necessary and foreseeable consequence of the applicant being removed from Australia to China.

   [27] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

3. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.

Returnee Asylum Seeker

1. The applicant claims that there is a real risk he will suffer significant harm as a returned asylum seeker upon his return to Vietnam. However, most individuals who depart Vietnam illegally for the purposes of seeking asylum are likely to be able to return to Vietnam without facing harm. DFAT reports[28] that it is not aware of returnees who have applied for asylum being treated any differently to other returnees. Article 91 of the penal code 1999 prohibits fleeing abroad or defecting to stay overseas with a view to opposing the People’s administration there are no reported cases of this provision being used against asylum seekers.

   [28] DFAT report 2017 @ p.24

2. The applicant arrived in Australia on a valid [visitor] Visa. He overstayed this period by nearly 7 years. Trouble does not consider that this is in itself an indicator to the Vietnamese government that the applicant has sought asylum. Nevertheless, if this was to occur the Tribunal does not consider that, given the applicant’s background, profile or the fact that he has sought asylum in a western country, would mean that he would be detained. If the applicant was detained it is likely it would not be for any extended period and that he would be released shortly after being interviewed without harm.

3. As such, based on the available country information, the Tribunal finds that the applicant does not face a real risk of significant harm upon his return to Vietnam as a returnee asylum seeker.

Residential Registration

1. Resident’s laws are applied inconsistently by local police. This is in spite of the fact that under Vietnamese Constitution all citizens, including migrants, have equal rights, including freedom of movement and residence. Often this is due to lack of guidance and differing interpretations of the law which causes confusion. [29]A 2013 law explicitly recognise the right of local authorities to set their own policies regarding registration and some cities have tightened the requirements for obtaining permits permanent status. [30]

   [29] United Nations, ‘Migration, Resettlement and Climate Change in Vietnam’ March 2014 p.13-14 Vietnams Household Registration System, World Bank Group & Vietnam Academy of Social Sciences, June 2016 CIS38A80121252

Vietnam’s residency law and accompanying regulations ensure Vietnamese who have been living overseas can register for permanent residency and receive house or registration papers.[31] Registration is not made more difficult for individuals who no longer have relatives in Vietnam or have or who have acquired criminal records overseas.

[31] Vietnam’s household registration system >

To re-apply for permanent residency returning Vietnamese must provide the following;

(a)A declaration of any changes to house or registration details and members.

(b)A declaration of current household members.

(c)Documentary evidence of a legal place of residence, unless the person is accepted for registration with an existing household.

(d)A valid foreign passport or residence person permit.

(e)A repatriation document issued by Vietnamese Representative Office in the country the applicant is leaving.

(f)A Vietnamese passport with an entry permit stamp from Vietnamese border authorities, if the person still holds a Vietnamese passport.

To register for residence in a centrally administered city, the person must emit an application for residency to local police and allow 15 days for processing.[32]

[32] Refugee review tribunal >

In 2014 the National Offender Management Service[33] and Praxis Community Project[34] advised that the Vietnamese nationals who have been abroad longer than six months, upon return shall have their names revoked from their household register. Report[35] indicates that returning Vietnamese nationals must reapply for registration in order to regain Ho Khau[36] they must produce the correct documentation:

Persons absent from permanent place of residence for more than six months without registering the temporary absence and without plausible reason shall have their names crossed out from the household registration book. When they return they must reapply for registration. In order to regain all kale returning Vietnamese expatriates must produce one of the following documents:

· Vietnamese passport travel document which has a stamp verifying entry at the boarding gate.

· Proof of Vietnamese nationality granted by the Vietnamese representative agencies overseas, accompanied by proof of permission to return Vietnam issued by the -related authority.

· Certificate of Vietnamese nationality granted by the peoples, committee of provinces and cities directly under central rule.

· Authority accompanied by proof of the permission to return for permanent residence issued by the related authority.

[33] The National Offender management Service is a government department in the U.K making sure that people serve sentences handed out by Courts both in prison and in the community

[34] Praxis Community Project advocates for refugee needs and helps to develop leadership skills and contribute their voice in the wider community and policy debates. ‘ Returning to Vietnam’ National Offender Management Service and Praxis Community Projects 2017 CISEDB5OAD157, p.2-3

[36] The household registration system in Vietnam is known as ho khau

While the rules pertaining to internal location may vary across the country there is no information before the Tribunal to indicate that the applicant does not currently hold or could not obtain identity documents required to reapply for household registration. There is no information before the Tribunal to suggest that the applicant has a criminal record in Australia and there is no reason to believe that the applicant would be denied reregistration in Vietnam.

As such, the Tribunal does not accept that the applicant would face a real risk of significant harm on the basis that he could not obtain household residential registration in Vietnam. Accordingly, the Tribunal finds that the applicant would not face a real risk of significant harm on account of him not being able to obtain household registration as claimed.

At no stage did the applicant in his statement attached to his application or to the delegate advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm as required by s36(2)(aa).

CONCLUSION

1. 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) the Act.

2. 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).

3. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell

Senior Member