1712259 (Refugee)

1712259 (Refugee) [2020] AATA 5043 (21 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1712259

COUNTRY OF REFERENCE: Vietnam
MEMBER:Nicholas McGowan
DATE:21 October 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made 21 October 2020 at 2:53pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposed to the Communist system (and government) – religion – Catholic – arbitrary arrest – physical assault – lack of corroborating evidence – allowed to obtain a passport and depart Vietnam without hindrance – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 claims to be a citizen of Vietnam, applied for the visa on 15 December 2015.
The applicant was invited to attend a review hearing, as the Tribunal made clear in the invitation to the applicant the Tribunal was unable to come to a favourable finding on the evidence before it. The Tribunal conducted the hearing by teleconference consistent with authority given it under the Act. The Tribunal directed (under the Act) that the matter be heard in private, as the Tribunal has determined the state governmental restrictions currently in force in Victoria due to the SARS (Covid-2) pandemic make it impractical at this time to conduct the hearing open to the public.
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’s claims for protection and supporting evidence are contained in the Departmental file cited above. The applicant has provided this Tribunal a copy of the delegate’s refusal decision as part of the documentation she provided with her application for review of the protection via refusal. In broad terms, the applicant’s claims for protection are summarised as follows:
·     The applicant was raised in the Vietnamese city of Vung Tau. Her father died fighting the communists in 1974 while her mother worked for the Republic’s administration as a public servant prior to 1975.
·     Subsequent [to] April 1975 the applicant’s family were sent to a “education camp” and their property seized. Being [age] years of age at the time, the applicant was sent to live with an adoptive family, though her family were subject to regular checks day and night.
·     The applicant states the Communist Party is a corrupt dictatorship which has destroyed the Vietnamese economy.
·     The applicant claims to have been an outspoken activist pushing for democratic rights and says she has been intimidated by Communist Party-hired thugs. The applicant claims she has been arbitrarily arrested and imprisoned, without trial, and denied external contact during her incarceration.
·     As a Catholic, the applicant claims she has stood up for religious rights and has been often mercilessly beaten while trying to attend church and pray. The applicant asserts the Catholic Church has been persecuted and their property vandalised, observing priests and congregation members are regularly beaten and jailed, sometime disappearing altogether.
·     The applicant says that when she returned to Vietnam in 2015 ([September]) the level of surveillance, threats and harassment increased and is of the view it is just a matter of time before she is imprisoned again.
·     During the Tribunal’s hearing the applicant added that she wanted to stay in Australia and had no time to submit a partner visa application, as she is in a relationship, but her partner is unwell, and she wants to stay in Australia so she can continue to work. The applicant said she married in 2017, and sought to apply for a partner visa, though says her migration agent told her she would need to go offshore to apply for that visa, and given she fears returning to Vietnam, she fears she would be arrested. The applicant claims the Vietnamese government maintain surveillance on her family and enquire when she is returning to Vietnam. The applicant told the Tribunal she really wanted to apply for a partner visa rather than a protection visa.
·     During the hearing the Tribunal invited the applicant to expand upon any aspect of her claims. The applicant said that her present visa conditions do not allow her to work, and she really wanted a job in Australia, and this is why she requested a protection visa, to work in Australia.
·     The Tribunal again invited the applicant to expand upon any evidence in respect to her being a Catholic, or any aspect of the fear she claims in respect o her protection visa application. The applicant told the Tribunal when she was in Vietnam she was involved in some protests and various groups, which do demonstrations, and they received a warning from local police who warned them they would be arrested. At this time, the applicant says she applied for a Tourist Visa. Since this time the applicant says the authorities continue to look for her, and she suspects they will arrest her. The applicant wants Australia’s protection, given her fear of being persecuted.
·     The Tribunal asked why, if the authorities were seeking her, she was not prevented from leaving Vietnam when she last visited the country in 2015, given they could have done so at the international departures (airport). The applicant says she returned because her migration agent advised her she must apply for a protection visa from inside Vietnam. The Tribunal told the applicant it had some difficulty accepting this, as the purpose of a protection visa is to not require the applicant to return to the country they seek refuge from. The applicant told the Tribunal she did as her migration agent advised.
·     The Tribunal discussed the country information (discussed below). The applicant told the Tribunal the police had previously given her a verbal warning. The Tribunal asked whether the applicant had been imprisoned at any time, or hurt by the police, or people acting on their behalf. The applicant told the Tribunal she’d been detained for a couple of hours only, and they released her - after a couple of hours – after their interrogations. The Tribunal had some difficulty understanding this oral evidence as it appears to contradict the applicant’s earlier claims she was “mercilessly beaten” whilst trying to attend Church and pray. The Tribunal sought to clarify who had “mercilessly beaten” her, if not the authorities - or those acting on their behalf. The applicant told the Tribunal the people who beat her, were a special branch of police, not uniformed, and they always search and find people involved in any demonstration against the government, so they can beat them up. The applicant says the uniformed police did not beat her, those not in uniform did. The applicant added that any evidence for any of these acts had been destroyed.
Protection in another country assessment
Based on the applicant’s certified copy of her Vietnamese passport (bio-page), the Tribunal accepts the applicant does not have a right to enter and reside in a country other than Vietnam.
There is no evidence before this Tribunal, or the Department previously (according to the Minister’s delegate’s Decision record dated 12 May 2017: Part 3) that indicates any of the documents provided by the applicant are bogus documents as defined in s.5(1) of the Act.
Given the above, the Tribunal accepts that section 36(3) of the Act does not apply to the applicant.
Refugee criteria assessment—s36(2)(a) of the Act
The applicant claims to fear harm because of her anti-government, anti-communist political opinion and because she is a Catholic. In accordance with s.5J(1)(a) of the Act.
A person who has a well-founded fear of persecution for other reasons is not a refugee within the terms of the Migration Act.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Findings of Fact
The applicant is a Vietnamese citizen, born [date] in Vietnam.
The applicant first arrived in Australia on a Tourist visa [in] April 2013.
The applicant returned to Vietnam twice between July 2013 and October 2015.
The applicant’s Tourist visa expired [in] November 2015 and the applicant became an Unlawful Non-Citizen (UNC).
The applicant applied for a XA-866 Protection visa on 15 December 2015 and was granted an associated Bridging visa at that time while her Protection visa was being considered.
The applicant’s own evidence is that she actually seeks a partner visa, but has been advised by her migration agent she should apply for a protection visa.
The applicant, according to her own evidence, is seeking protection so she can stay with her partner and work.
The applicant maintains that if she is required to return to Vietnam she fears for her well-being, including imprisonment and being beaten by non-uniformed police because of her activities, both as a Catholic, and/or because she is anti-Communist.
The applicant has not claimed uniformed police have hurt her, or threatened her in any way, though she states they did arrest her on one occasion and questioned (interrogated) her for around two hours, after which she was released.
Country information
The Tribunal has considered the Department of Foreign Affairs and Trade Country Information Report on Vietnam dated 13 December 2019. The Tribunal read aloud and discussed with the applicant the excerpt relevant to Catholics at paragraph 3.37.
POLITICAL SYSTEM
2.37 Vietnam is one of the world's few remaining one-party communist states. Under Article 4 of the Constitution, the CPV remains the country’s only legal political party. The CPV, through official and unofficial channels, controls all major government decisions (including defence and security matters), and CPV members hold all senior government and military positions.
2.38 The National Congress is the CPV’s largest national decision-making body. It comprises around 1,500 delegates and assembles every five years. The 12th CPV Congress was held in January 2016, with the 13th Congress scheduled to meet in 2021. The Congress elects the CPV’s Central Committee, the highest decision-making authority outside the CPV National Congress. The Central Committee currently comprises 180 full and 20 alternate (non-voting) members, and meets twice a year. The Central Committee elects the Politburo, Vietnam’s most powerful political body and the CPV’s decision-making body between Central Committee meetings. The Politburo currently comprises 16 members.
2.39 The four key pillars of power in the Vietnamese system are the General Secretary of the CPV (currently the most powerful position); President (Head of State) concurrently held by the General Secretary since October 2018 following the death of the then-President, the previous month; Prime Minister (Head of Government); and, President of the National Assembly (the national Legislature). The General Secretary, Prime Minister and President of the Assembly are all members of the Politburo. In 2019, the General Secretary reportedly suffered a serious illness and as a result has relied on the Vice President and Head of the Secretariat to support him in fulfilling his leadership roles.
2.40 The 14th National Assembly elections were held in May 2016. An extensive vetting process took place for all candidates, which was led by a CPV-sponsored organisation, the Vietnamese Fatherland Front (VFF). The VFF approved 870 candidates to run; of whom 97 were non-Party members and 11 were self-nominees (162 self-nominees sought approval, an increase on previous elections). Of the 496 elected deputies, 475 are Party members, 21 are non-Party members including only two self-nominated candidates. Subsequent to the 2016 elections, due to illness, death, prosecution and other reasons, the current number of deputies has reduced to 483.
2.41 State-run media reported that 99.35 per cent of the eligible population cast ballots. While the CPV concluded the process was successfully conducted, observers criticised the vetting process for candidates and the tight security and propaganda that prevailed throughout the process. Some critics did not consider the two self-nominated candidates elected to be genuinely independent.
…..
RELIGION
3.16 Officially, Vietnam is an atheist state. Article 24 of the Constitution states, however, that all people have the right to freedom of belief and religion, including the right to follow any religion or to follow no religion; that all religions are equal before the law; and that no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the law. These constitutional rights are conditional on law and The Penal Code (2015) establishes penalties for practices that, in the view of authorities, undermine peace, national independence and unity.
3.17 According to the 2019 Annual Report of the United States Commission on International Religious Freedom (USCIRF), government-recognised religions/faiths in Vietnam numbered 43 religious organisations from 16 religious traditions, representing more than 25 million followers in total. These traditions included: Buddhism, Hoa Hao Buddhism (see Buddhists), Catholicism (see Catholics), Cao Dai (see Cao Daists), Protestantism (see Protestants), Islam, the Baha’i faith, Mormonism (Church of Jesus Christ of Latter-Day Saints), Khmer Brahmanism, Hieu Nghia Ta Lon Buddhism, Vietnam Adventist Church; as well as Buu Son Ky Huong, Tinh Do Cu Si Phat Hoi, Tu An Hieu Nghia, Phat Duong Nam Tong Minh Su Dao, and Minh Ly Dao Tam Tong Mieu (the last five are all domestic practices); and officially atheist. Three additional groups – the Assemblies of God, Ta Lon Dutiful and Loyal Buddhism, and Vietnam Full Gospel Church – are ‘licensed for religious operation’ but are not recognised as official organisations. Differing slightly, the Vietnam Government’s National Report to the 2019 HRC UPR process noted its recognition of the legal status of 42 religious organisations affiliated with 15 religions. These statistical differences may be attributed to the Government recognising in addition one dharma practice (a set of spiritual practices); the Vietnam Adventist Church being included within the Protestant tradition; and the time-lag between applying for registration and licencing. As noted in 2.7, other religious groups present in Vietnam include small communities of Hindus, Falun Gong followers, Muslims, Jehovah’s Witnesses and a mostly foreign Jewish population.
3.18 Some Buddhist, Protestant, Hoa Hao, and Cao Dai communities choose not to participate in officially recognised religious organisations and instead belong to independent organisations that also claim to represent the religion. There is a considerable difference in the treatment by authorities of official and independent religious groups. For the most part, religious followers belonging to officially recognised religious organisations are able to practise their faith without significant interference, regardless of which particular religion they may follow. Those associated with independent organisations, however, are less likely to be able to do so (as outlined in this section). There is also a difference in treatment according to location: whereas religious followers in urban, economically developed areas are generally able to exercise their religion or belief freely, religious communities in rural parts of some provinces are more likely to face restrictions and/or harassment. This is particularly the case for religious followers in ethnic minority areas, where ethnic, political, and religious issues frequently overlap (see also Race/Nationality).
3.19 USCIRF has classified Vietnam as a ‘country of particular concern (CPC)’ since 2002, which defines it as ‘a country that commits systematic, ongoing, and egregious violations of religious freedom’. Human rights observers reported an overall decline in the situation for religious groups in 2017 and 2018, particularly for followers of independent religious groups. Religious leaders representing independent groups have reportedly faced various forms of official harassment, including physical assaults, arrests, prosecutions, monitoring, travel restrictions, property seizure or destruction, and denials of registration and/or other permissions. Followers of independent religious groups have reportedly been subjected to public criticism, forced renunciation of faith, detention, interrogation, torture, and imprisonment. International observers also reported an increase in acts of violence against religious groups (including registered groups) in 2017 and 2018 by police and plainclothes individuals, including some working closely with or representing authorities.
3.20 A new Law on Belief and Religion (2018) came into effect in January 2018, superseding a number of existing regulations, decrees, policies and practices overseeing religion. The law nominally obliges the government to protect religious freedom, gives Vietnamese religious organisations the right to legal personhood, and has eased some operational bureaucracy for registered religious organisations, reducing considerably the waiting period for applications (from 23 years to five years). The new law also requires all religious groups to register with the Government Committee for Religious Affairs and to report on routine religious activities, including festivals and conferences. The implementing regulations, which came into force in June 2018, impose fines on organisations deemed to ‘abuse religion to infringe upon the interests of the state or engage in fabrication or slander’. Human rights organisations have raised concerns that these provisions are overly vague, and potentially enable authorities to arbitrarily punish religious groups.
3.21 Civil society organisations report that some official religious groups have found it more difficult to obtain government approval to conduct routine activities since the new Law on Belief and Religion came into effect. In January 2018, for example, authorities in Quynh Ngoc Province cited the new law to declare a Catholic Mass illegal because the priest had not registered the meeting, while authorities in Quang Binh Province banned a Catholic priest from making home visits to conduct prayer services, which he had been doing since 2014. By criminalising activities not officially approved in advance, the new law has had a particularly deleterious impact on independent groups. On a number of occasions in 2018, authorities used the new law to justify prohibiting informal religious activity that the previous legal framework had tolerated (if not endorsed). Local authorities have also reportedly used the new law as justification for seizing religious sites and temples associated with independent religious groups.
3.22 DFAT understands that there have been instances in which national policies have not been efficiently communicated to and/or consistently implemented by local authorities, leading to negative treatment for religious groups. For example, multiple cases were reported in 2018 in which local authorities seized property from religious groups for economic development, without providing the groups adequate compensation. In some cases, central authorities intervened and mediated property disputes on behalf of religious groups.
3.23 Local authorities in the Central Highlands have reportedly refused to issue identity cards, household registration and birth certificates to approximately 2,000 Protestant Montagnard and Hmong households (around 10,000 individuals), leaving them effectively stateless. In-country sources advise that, in many cases, the local authorities’ refusal to issue the documentation is in retaliation for individuals rejecting official requests to renounce their faith.
3.24 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from authorities, although they may still face discrimination from local and provincial authorities. Adherents associated with independent religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.
……
Catholics
3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.
3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.
3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 (see Recent History), Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 (see Political Activists). For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections, and claimed it had reduced online traffic to Catholic websites (see also Media). Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.
3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.
3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.
3.37 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.
Analysis

The applicant claims the Vietnamese police will arrest her and imprison her if she returns to Vietnam. The applicant claims this will occur because she is opposed to the Communist system (and government) and is standing up for her political and religious rights. The Tribunal notes the applicant was allowed to obtain a passport and depart Vietnam without hindrance. The applicant’s uninterrupted departure from Vietnam suggests to the Tribunal that the Vietnamese authorities do not seek the applicant for the purpose.
The applicant has also claimed she has been previously beaten “mercilessly”. The applicant has been provided with a further opportunity through this review to provide a detailed account of this claim, and other claims (events) which she says have occurred, including the ongoing threats and interactions she says the authorities are having with her family back in Vietnam. The Tribunal notes the applicant is represented. The Tribunal notes the applicant has not provided any evidence whatsoever to support any of her oral claims, outside her oral evidence. There are no statement(s) presented to the Tribunal by any other person, or relative (or Church member) for example, which confirm either the historic, or the ongoing nature of the claimed threats to the applicant. There is no evidence of the applicant ever being imprisoned, “mercilessly beaten” (outside the applicant’s oral claim) including no medical records, no contemporaneous notes by the applicant, no emails from the applicant to anyone at (or around) that time, no phone records which indicate a course of events that followed her claimed incarceration or mistreatment, no SMS or any other digital records or messages to any person from the applicant at – or around the time of any of the claimed serious events, including no written letters or documents from the applicant to any other person - as examples.
It is evident to the Tribunal that in the absence of any corroborating evidence whatsoever, it must rely entirely on the applicant’s oral evidence, however in this matter the applicant herself has consistently provided such scant accounts and detail in respect to all of her claims, including for example, no clear enunciation of the claimed events (including dates, names of other people involved, for example in her Church, or even in regards to the actual nature of her claimed religious or political activism). In such circumstances, and given the paucity of evidence - which supports what are extremely vague claims, the applicant’s evidentiary basis for her protection claims is extremely weak.
In addition, there is no evidence before the Tribunal, or the Department previously, that even suggest or speculate that the applicant may have an adverse political profile or is of any interest to the Vietnamese authorities, including the Vietnamese police.
Given all the above, and because of the paucity of evidence - accompanied by the lack of any real specificity in respect to the applicant’s protection claims, the Tribunal has not been satisfied the applicant is at risk of harm from the Vietnamese authorities (including the police) or anyone else in Vietnam for the reasons of her political opinion or religion.
Further, the Tribunal is not satisfied that there is a real chance that, if the applicant was returned to Vietnam, she will be persecuted for one or more of the reasons mentioned in section 5J(1)(a) of the Act.
Accordingly, the applicant is not a refugee as defined in section 5H and the criterion in section 36(2)(a) of the Act is not satisfied for this reason.
Finding on refugee criteria – section 36(2)(a) of the Act
The applicant has not satisfied the Tribunal she is a refugee as defined by section 5H(1) of the Act. Therefore, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.
As the Tribunal is not satisfied the applicant is a refugee, as defined by s5H(1) of the Act, an assessment in relation to s5H(2) of the Act has not been made.
Complementary protection criteria assessment – section 36(2)(aa) of the Act
The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk of the applicant facing significant harm, as defined in ss36(2A) for the reasons she claims, if she returned to Vietnam in the foreseeable future.
Finding on Australia’s protection obligations
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 section 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
Decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5043

21 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice