1712262 (Refugee)

1712262 (Refugee) [2019] AATA 6508 (1 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712262
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nicole Burns
DATE:1 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 October 2019 at 3:59pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Christianity – membership and activity in Catholic church – harassment and detention by police – low-level political and social media activity in Australia – credibility – vague and inconsistent evidence – left Vietnam on own passport with no problems – country information on status of church and Christians, and internet and social media – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB [2013] FCAFC 33

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are a [age] year old woman, her husband and their son, who was born in Australia on [date]. They are nationals of Vietnam and seek to invoke Australia’s protection obligations so they do not have to return to Vietnam for a number of reasons, considered below. They applied for the visas on 9 November 2015 and the delegate refused to grant the visas on 18 May 2017, not satisfied that Australia owed them protection.
The applicants appeared before the Tribunal on 28 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants are represented by an authorised migration agent. She did not attend the hearing.
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.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
The first and second named applicants travelled to Australia in July 2008 as the holders of valid Vietnamese passports (and visitor visas for Australia). They state that they are nationals of Vietnam. The delegate had no concerns about their claimed identity and nationality. Therefore the Tribunal has assessed their claims against Vietnam as their receiving country.
The first named applicant (hereafter the applicant) set out her initial claims in a typed statement that accompanied her protection visa application. (The other applicants did not make any claims at the protection visa application stage and confirmed at hearing that they were relying on the applicant’s case, as members of her family unit: however the second named applicant did indicate some concerns – about returning to Vietnam - in his oral evidence, which the Tribunal has addressed where relevant below). In those statements the applicant claimed to have left Vietnam for a number of reasons, including economic reasons, due to the government’s land distribution legislation, religious persecution by the government, and because she spoke out in favour of human rights and freedom of religion and was mistreated as a result.
The delegate was not satisfied the applicant was owed protection for a number of reasons, including because she found the applicant provided vague and general evidence about her claims; country information did not support aspects of her claims; she and her husband were able to obtain passports and departed Vietnam without hindrance; and due to the significant delay in applying for protection.
On review the applicant provided to the Tribunal a translated written submission dated 22 August 2019 in which she elaborates her claims. She also provided photographs and a video recording of her and her family at a demonstration against the Vietnamese government in [City 1, Australia] in [2018], a screenshot of a Facebook post related to a woman protesting an environmental disaster in Vietnam, and a screenshot of a YouTube photograph, allegedly of a man killed by the Vietnamese authorities found to have had a South Vietnamese flag in his house (in Vietnam).
The applicant gave oral evidence to the Tribunal about why she left Vietnam and her fears about returning, summarised as follows. She said prior to coming to Australia in mid-2008 she was living with her husband and his parents in [village], Ha Tinh province. She worked as an [occupation] for a government [workplace] in Ha Tinh City and her husband worked in a provincial government [office] there.
The applicant said she and her husband left Vietnam in mid-2008, claiming that they wanted to attend a Catholic youth convention in Sydney (World Youth Day or WYD), but they did not attend the convention when they arrived. She said she wanted to escape Vietnam because around six months prior – [in] January 2008 – she had been forcibly taken to [a] Police Station by three men in plainclothes after leaving her church one afternoon. There she was arrested, beaten and told by the police to stop speaking about religious persecution (of Catholics in particular) in Vietnam and the ‘truth’ about Ho Chi Minh. She said she used to discuss such matters with other church members. The police released her the next day and the applicant went straight to her parents’ house which was nearby. Her father called a local doctor who came and treated a wound on her forehead.
After this incident the applicant said the police kept an eye on her and continued to ‘terrorise’ her. When asked how, she said sometimes there would be a stranger at the gate at the [workplace] where she worked and sometimes strangers followed her. She kept going to church but stopped talking about such matters. She decided to leave Vietnam and made the necessary arrangements, including applying for a passport, in the period of around April to June that year. She had no problem exiting Vietnam, noting the government let such people – who talk badly about them and do not like living under communist rule – leave.
In Australia the applicant said she has undertaken [specified] work, worked as [an occupation] and currently works in a [workplace] (as does her husband). She has shared posts on [Social media] which are anti-government: for example she shared posts about a woman in Vietnam who protested against the environmental disaster whereby a factory polluted the environment, resulting in the death of fish stocks for example. She shared a post about this disaster and the related demonstrations, to her [Social media] friends. She also attended a protest in [City 1, Australia] about the environmental incident [in] [2018], along with her son and husband. At that protest her son held up a South Vietnamese flag. Subsequently her husband uploaded photographs and a video on [Social media] of their attendance at the protest and of her son holding the flag. She fears they will be arrested and possibly harmed by the Vietnamese government on return to Vietnam as a result.
Findings about the applicant’s past experiences in Vietnam
The Tribunal accepts the applicant was a practising Catholic in Vietnam as was her husband. It accepts that after they married they lived together in [a] village, Ha Tinh Province with her parents-in-law and that she worked in a government [workplace] whilst her husband worked [in] a provincial government office.
However, as discussed at hearing, the Tribunal has a number of concerns about the applicant’s claims to have been temporarily detained by the police in her home village in January 2008 and told not to talk openly about religious persecution and the ‘truth’ about Ho Chi Minh (that is being married and having children, according to her written statement provided to the Tribunal) and allegedly being ‘terrorised’ thereafter, as follows.
a.The applicant’s oral evidence at hearing about problems she allegedly experienced from the Vietnamese authorities in the past when speaking out about religious persecution (among other things) differed in some respects to her written claims in her visa application, which the Tribunal found brief and lacking in detail and context. For example in her application form she said because she ‘voice out’ to protect freedom of religions she was persecuted by Vietnam’s Community party, was tortured and suffered a serious head injury and an injury to her stomach, and was not allowed to attend church services. However she did not provide any further details or context. At hearing she said she was assaulted but not tortured. When asked at hearing about her statement in the visa application that because she ‘publicly voice to protect the people Human Rights’ she was assaulted by thugs hired by the Vietnamese Communist party who imprisoned her and forbade her to contact her family and relatives, the applicant said she was referring to the same incident when police arrested her and detained her overnight. However these read as two separate incidents in her application form (one on ‘page 1’ and the other on ‘page 2’), particularly given she states in the application form that she was assaulted by thugs because she confronted ‘hard social issues’ – listed to include concerns about the government’s economic policies among others – but the list does not include speaking about religious freedom or Ho Chi Minh.
b.There was an inconsistency in a significant respect between the applicant’s oral evidence to the Tribunal and written claims contained in her visa application: that is, in her written statement to the Tribunal she claimed to have been detained two nights yet she said at hearing she was detained overnight.
c.The fact the applicant was able to obtain a passport and depart Vietnam without any problems in the period after her alleged arrest and detention indicates that she was not of any particularly adverse interest to the authorities at the time.
a.The applicant’s oral evidence at hearing about what happened to her after she was released from the police station [in] January 2008 was vague. For example she said she was ‘terrorised’ but when asked how, she was unable to adequately explain, except to say that they kept an eye on her. When probed further she said she knows because she would see strangers at her work place and they would sometimes follow her, but failed to provide adequate – in the Tribunal’s view – details and context.
b.In her written statement provided to the Tribunal the applicant states that the authorities heavily monitored her life and work after she was released, including by using undercover police to watch her all the time; hiring thugs to follow her to and from work every evening; making it difficult for her whenever she went to church; and by throwing stones and bricks into her house when it was dark to threaten and terrorise her and her family. The applicant did not mention that there were stones and bricks thrown at her house at the hearing, which casts doubts on her claims in this respect. Additionally, the Tribunal finds it implausible that the authorities would engage in such intensive monitoring and surveillance of the applicant during this period (February to June 2008) – she claimed thugs followed her every evening – yet allow her to obtain a passport and leave the country without any problems.
c.The applicant kept her job at the government [workplace] after her arrest, despite her claims to have been threatened and terrorised by the authorities during this period. In her written statement provided to the Tribunal the applicant states that when she was detained the police threatened to force her to quit her job if she did not keep quiet, which she did in order to keep her job. The applicant did not mention this in her application form and given the other concerns the Tribunal has with her case, it does not accept her claims in this regard.
d.The applicant did not apply for protection in Australia for almost seven years after her arrival, despite claiming to have been of adverse interest to the Vietnamese authorities from early 2008. In her written statement provided to the Tribunal the applicant explained this was because she feared being pursued by communist agents in Australia, who would make her return to Vietnam. As well she was confused, had a lot of worries and did not know how to access legal services. The Tribunal is not persuaded by these explanations. It considers it implausible that the applicant would fear Communist agents in Australia particularly given she had no problems leaving Vietnam and obtaining a Vietnamese passport. Also as someone who is educated and was in the workforce, the Tribunal does not accept that she did not know how to access legal services in Australia. The Tribunal considers that a person in the applicant’s position holding a genuine fear of persecution if she were to return to her country of nationality would have taken active steps to make a refugee claim. That is more so the case in the present circumstances given that the applicant’s position, as she stated it to the Tribunal, was that she thought she should take the opportunity to go to WYD because it was her chance to escape Vietnam.
For these reasons the Tribunal does not accept the applicant was detained for one or two nights by the authorities in Vietnam in January 2008, assaulted, and told not to speak to others about the treatment of Catholics (for example). It follows that the Tribunal does not accept that she was ‘terrorised’ or monitored by the authorities thereafter.
Accordingly the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Vietnam in relation to this incident on religious and/or imputed political opinion grounds.
In reaching this conclusion the Tribunal has taken into account the oral evidence of the second named applicant which included claims that after his wife was arrested and detained in January 2008 sometimes people followed her and threw stones on the roof of their house at night. However his evidence does not overcome the numerous credibility concerns the Tribunal has with this aspect of the applicant’s claims, as set out above.
Findings about the applicant’s activities in Australia
The Tribunal has considered the applicant’s claims to have been involved in a protest in Australia in [2018], where her son held a South Vietnamese flag. The applicant claims her husband took photographs and a video recording of herself and her son at the protest, which he subsequently uploaded onto [Social media]. As such, she claims to fear persecution from the Vietnamese authorities on return to Vietnam because of her and her family’s political activities in Australia.
In her written statement provided to the Tribunal the applicant states that she and her family often participate in demonstrations to support people of Vietnam to oppose the communist party, organised by the free refugee community in Australia. However her oral evidence to the Tribunal was that she only attended the one protest, in [2018].
The Tribunal accepts the applicant participated in a demonstration [in] [2018] in [City 1, Australia] along with her son and husband and that her son held a South Vietnamese flag at the protest. It accepts there were photographs and a video taken (copies of which have been provided to the Tribunal) and that these images may have been shared online.
The Tribunal has a number of concerns about the applicant’s motivations for joining the protest. This is primarily because her evidence about the protest’s purpose was inconsistent: that is she told the Tribunal that it was a protest about the environmental catastrophe that had been caused by a factory located near her home town in Vietnam however in her written statement she said the protest was against communists and cyber security law. Additionally, the applicant’s motivations for attending the protest (and posting evidence of such online) were general and unconvincing. For instance she said she attended the protest, and held a South Vietnam flag, because as Catholics they support the South Vietnamese government who support freedom of religion. When asked why she (and/or her husband) posted these images online, the applicant said because of her experiences in Vietnam she came to love the flag. The Tribunal also notes that whilst on the one hand the applicant claims to have felt compelled to speak out (against the Vietnamese government) in Australia as a Catholic, on her own oral evidence to the Tribunal she only attended one protest in over 11 years (and it was after her protection visa application was refused).

At hearing when the Tribunal discussed some of these concerns the applicant said that as a Catholic she wanted to protect the truth and could see clear evidence the Vietnamese government allowed the factory to pollute the sea and kill the fish; that her people demonstrated against this in Vietnam; and she wanted to follow them.[1] However as mentioned this was inconsistent with the alleged purpose of the protest as set out in her written statement to the Tribunal, which casts doubts as to whether she was engaged with the issues behind the protest and whether her motivations for attending that protest were genuine.
[1] This incident took place in April 2016: that is mass fish deaths caused by a toxic waste spill at Taiwanese-owned steel company, Formosa Ha Tinh Steel Corp, in Ha Tinh province.
Despite these concerns, the Tribunal accepts that the applicant’s motivations to attend the protest (and upload images online) can be multifaceted and therefore has not disregarded the conduct in assessing her protection claims (as per s.5J(6) of the Act). It is unclear if the Vietnamese government would come to know that the applicant and her husband and her son attended a protest in [City 1, Australia] [in] [2018] just because they uploaded photographs and a video on the applicant’s [Social media] page, although the Tribunal notes country information (referred to below, elsewhere) indicates that the Vietnamese state heavily monitors media and internet activities. However even if they did, the Tribunal finds remote the chance that the applicants would face serious harm from the authorities as a result, given it was only one protest in 11 years in Australia (even if holding a South Vietnam flag), even taking into account that they may have shared some messages online about matters which could be construed as anti-(Vietnamese) government, such as criticism of the Formosa environmental disaster (addressed separately below).
As discussed at hearing DFAT indicates that whilst political and human rights activists who openly criticise the government, the CPV and its policies are at high risk of attracting the adverse attention from the authorities, the treatment from the authorities generally depends on the individual’s level of involvement.[2] The Tribunal is not satisfied that the applicant or her husband have such a profile that they would be at risk of serious harm from the authorities because of their actual or imputed political opinion (arising out of attending one protest in 11 years and occasionally sharing posts on [Social media] and other social media) if they return to Vietnam in the foreseeable future.
Fears arising from online activity
[2] DFAT Country Information Report Vietnam, 21 June 2017 at 3.25.
The applicant claims to have been active via social media in Australia including sharing posts and making comments critical of the Vietnamese government.
At hearing the applicant said she has shared posts on [Social media] about a woman in Vietnam who protested against the Formosa environmental disaster and provided a related screenshot.
In her written statement provided to the Tribunal the applicant states that she shared on her [Social media] page a story about Vietnamese people protesting against a Chinese-built factory (Formosa) in her home area (Ky Anh – Ha Trinh) whose operations caused serious environmental pollution resulting in mass deaths of fish in the seas of central Vietnam; in particular Catholics from Loc Ha protested on 3 April 2017 to stop the operation of the Formosa factory; the event supervisors were arrested and imprisoned for 10 years, including [people] from her home town parish.
The applicant also claimed in her written statement to help expose via [Social media] the communists’ selling of Vietnam by writing, sharing or debating relevant articles and also articles about the cyber security law. (At hearing the second named applicant also mentioned his concerns about the introduction of a new cyber security law in Vietnam used to monitor people). As a result she is concerned the Communist Party will seek revenge on her and her family and imprison them on their return.
The Tribunal accepts the applicant may have shared some posts on social media (in particular [Social media]) which could be seen as critical of the Vietnamese authorities, including in relation to the Formosa environmental disaster. The applicant claimed in her written statement to have written or debated articles in addition to sharing posts, however she has not provided any evidence of such and the Tribunal does not accept her claims in this regard. Whilst country information indicates that the Vietnamese government limits the use of the internet[3], that the state heavily monitors media and internet activities, and there are reports of people being detained for journalism and/or online activity which openly criticised the communist party of Vietnam or government policies,[4] the Tribunal is not satisfied that the applicant’s activities online – that is occasionally sharing posts in Australia over the past 11 years – even if brought to the Vietnamese authorities’ attention, will result in her facing a real chance of persecution as a result, particularly given neither the applicant or her husband have an adverse political profile.
[3] DFAT Country Information Report Vietnam, 21 June 2017 at 3.31.
[4] UK Home office: Country Police and Information Note, Vietnam: Opposition to the State, September 2018 at 2.4.17 – 2.4.19,
The Tribunal has considered if the applicants would be politically active on return to Vietnam and whether they would face a real chance of serious harm from the authorities as a result. For reasons set out earlier the Tribunal does not accept the applicant’s claims to have spoken out about religious persecution and human rights abuses in the past in Vietnam (and attracted the adverse attention of the authorities there as a result). The Tribunal accepts the applicants attended one protest in Australia in mid-2018 and may share posts online at times, some of which could be seen as anti-Vietnamese government but is not satisfied such activity would result in them being significantly harmed by the authorities as a result. On return to Vietnam the Tribunal accepts the applicant (and her husband) may continue to use social media platforms, which are widely available in Vietnam. It accepts based on the country information referenced above that the Vietnamese government limits internet use and monitors and censors online activity, of ‘those engaged, or suspected of engaging, in unauthorized political activities’.[5] However, for the reasons above the Tribunal has found the applicant is not of any adverse interest to the Vietnamese authorities nor would be including as a result of her activities in Australia – that is attending one protest in mid-2018 and sharing some material on [Social media] – to such an extent that it would give rise to her facing a well-founded fear of persecution by the authorities in Vietnam. It therefore finds remote the chance the applicant or her husband may face persecution in Vietnam by the authorities even if they occasionally share posts considered to be anti-government online, as they have in the past.
[5] Ibid at 2.4.18.
Taking into account these considerations the Tribunal is not satisfied that the applicants would be politically active at all on return to Vietnam. They may occasionally share information and posts online but the Tribunal is not satisfied on the evidence before it that this would result in a real chance of serious harm. For these reasons the Tribunal finds that the applicants do not face a real chance of serious harm from the authorities in Vietnam on actual or imputed political opinion grounds on return to Vietnam in the foreseeable future.
Catholic religion
The Tribunal accepts that the applicant and her husband are Catholics and that they came to Australia in 2008 as pilgrims to attend WYD, although they failed to do so. It accepts their son is also a Catholic, noting a copy of his baptism certificate is on the Departmental file. For reasons above the Tribunal does not accept the applicant’s claims to have been detained by local police for one or two days in January 2008, assaulted, and told not to speak critically of the Vietnamese authorities (including about their alleged treatment of Catholics). The Tribunal has accepted the applicant may have shared [Social media] posts which could be construed as critical of the Vietnamese government whilst in Australia, but finds remote the chance that she would face serious harm from the authorities on return as a result.
At hearing the applicant said she did not experience any other problems as a Catholic in Vietnam, although she noted that although the government there claim they have freedom to worship, they do not really. She said the authorities destroy and/or confiscate churches and this happened to two churches near her home town (she could not recall when).
When asked if any of her or her husband’s family members who are Catholics and have remained in Vietnam have experienced any problems because of their religion, the applicant replied ‘no’ and said they just keep practising their faith normally. The applicant told the Tribunal that her husband’s brother is a Catholic priest in Vietnam and did not indicate that he had experienced any problems from the authorities as a result.
At hearing the second named applicant said he grew up a Catholic in Vietnam and sometimes when he was younger the authorities made it difficult to practice. For example he said that once when he wanted to play the organ for his church choir the local police told him to stop. The Tribunal accepts that may have occurred but notes that being told by local police not to play the organ at church is not serious harm as defined in the Act. The second named applicant did not indicate that he was otherwise prevented from practising his religion or faced problems as a Catholic in Vietnam.
In her application the applicant refers to the Vietnamese government’s land control policies which, she argues, cause millions of people to lose their rights to their ancestral land. When asked about this matter at hearing the applicant referred to the government confiscating land owned by Catholics in Ho Chi Minh City in order to build something for themselves (she did not elaborate). She did not indicate that she was directly affected.
As discussed at hearing, DFAT indicate in their most recent country information report on Vietnam that Catholics who practice in registered churches and otherwise do not have an adverse political profile, are able to do so relatively freely. They state:
Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.[6]
[6] DFAT Country Information Report Vietnam, 21 June 2017 at 3.9 and 3.10.
The UK Home Office in a more recent report on ethnic and religious groups in Vietnam state the following with respect to registered religions in Vietnam:
The government has registered an increased number of religious groups and generally respects the religious freedom of those registered groups, as long as they comply with regulations.
In general there is no real risk of state persecution or serious harm on account of a person’s religious beliefs for persons belonging to government registered groups.[7]
[7] UK Home Office, Country Policy and Information Note, Vietnam: Ethnic and religious groups, March 2018 at 2.2.11.
The Tribunal acknowledges country information indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief. However, as discussed at hearing, religious observance and practice usually only becomes an issue when it is perceived to challenge the authorities or interests of the CPV and its policies.[8] As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent upon their relationship with the government and those groups the government continued to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism.[9] DFAT assess that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from the authorities.[10] For reasons above the Tribunal does not accept that the applicant came to the adverse attention of the authorities and was detained temporarily in January 2008. There is no indication that Catholic followers are persecuted for practising their faith per se.
[8] DFAT Country Information Report Vietnam, 21 June 2017 at 3.8, 3.10, 3.13 and 3.25.
[9] Ibid at 3.8.
[10] Ibid at 3.19.
Given these considerations the Tribunal is satisfied the applicants will be able to practice their Catholic religion as they have in the past – by praying and attending church – and finds the applicants do not face a real chance of persecution now or in the reasonably foreseeable future if they return to Vietnam for reasons of their Catholic religion or any imputed political opinion based on their Catholic religion from the authorities, or anyone else.
Returnees and failed asylum seekers
The Tribunal has considered if the applicants face serious harm from the authorities on return to Vietnam on imputed (anti-government) political opinion grounds and/or as failed asylum seekers.
As discussed at hearing, with respect to the treatment of returnees, DFAT in their most recent country information report on Vietnam state as follows:
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’.[11]
[11] DFAT Country Information Report Vietnam, 21 June 2017 at 5.15
Furthermore DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Vietnamese government.[12]
[12] Ibid at 5.21
On the basis of this country information and given the Tribunal does not accept the applicant or her husband are of any adverse interest to the Vietnamese authorities for any reason, the Tribunal finds remote the chance the applicants would be seriously harmed on return to Vietnam as failed asylum seekers and returnees either on particular social group or (actual or imputed) political opinion grounds.
Economic concerns
In the application form the applicant raises concerns about the economy in Vietnam, noting that the Communist party is placing the Vietnamese economy at serious risk which is impacting on peoples’ living conditions and the future of the country. She states further that their economic policy is based on state-owned directives which cause monopolies and abuse of power and distortions in the course of a market driven economy. At hearing when asked about this matter, the applicant said she is concerned about the high cost of living in Vietnam.
The Tribunal accepts the applicant may be concerned about the high cost of living in Vietnam and in general the economic climate there. It accepts she and her husband have not lived in Vietnam for over 11 years and may be concerned about finding employment there on return. Nonetheless, the applicant and her husband are both educated and have professional work experience in Vietnam including with the government. They have also worked consistently in Australia. At hearing the applicant told the Tribunal she has [siblings] in Ha Tinh who works: [details deleted]. Her parents live there, and have retired after previously owning a [shop]. The applicant’s husband also has siblings who live and work in Vietnam, [details deleted]. There is nothing to indicate that the applicants’ family members could not help out the applicants and their son at least initially on return before they find employment, for example with temporary accommodation.
Given these considerations the Tribunal does not accept that the applicants face a real chance of serious harm on return to Vietnam such as significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and/or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, as contemplated by s.5J of the Act.
Other matters
The Tribunal notes that in her application form the applicant indicated that she wishes for her child to have a happy and stable life in Australia, where human rights are protected, where he can obtain an education from early in their childhood, avoid poverty and live well. These sentiments were echoed by the applicant at hearing, who said that she worries about her son’s future, and noted that he cannot speak much Vietnamese. The Tribunal understands why she wants to stay in Australia, in particular for her son’s education and future opportunities, however, as explained at hearing, these considerations do not amount to serious or significant harm as defined in the Act.
The Tribunal also notes that at hearing the second named applicant told the Tribunal that when he worked in the [office] in Ha Tinh in the past in Vietnam he was not allowed to print some articles. For example once he wrote an article about religions having their own culture but it was not printed. The Tribunal accepts the second named applicant was limited to some extent in what he could write about when he worked for a provincial government [department] in the past in Vietnam. However such restrictions do not amount to serious or significant harm as defined in the Act.
Conclusion – refugee grounds
Having considered the applicants’ claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicants do not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that their fear of persecution is not well-founded.

For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
COMPLEMENTARY PROTECTION
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. In this case, the Tribunal has found that the applicant is a national of Vietnam and the Tribunal therefore finds that Vietnam is the ‘receiving country’ for these purposes.
For reasons set out above, the Tribunal finds the applicant (and her husband and son) do not face a real chance of serious harm if they return to Vietnam from the authorities or anyone else because of their actual or imputed political opinion, Catholic religion, as failed asylum seekers, due to the economy or because of online activities critical of the Vietnamese government. 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.[13] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Vietnam on these bases as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.
[13] 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].
The Tribunal accepts the applicant, her husband and their son attended a protest in [City 1, Australia] [in] [2018], where her son held a South Vietnamese flag. It accepts that subsequently her husband shared photographs and video footage online. As a result, the applicant claims to fear persecution from the Vietnamese authorities on return to Vietnam, who it is argued monitor such activities. At hearing the second named applicant said they held the flag because they wanted to prove that they love freedom and democracy. He said as a consequence they fear retaliation from the Vietnamese government for what they have done here, noting the Vietnamese government has passed a law about cyber security used to prosecute those who scatter bad news about the government. He requested the Tribunal help them stay in Australia until the Communist regime in Vietnam is no more.
In her written statement provided to the Tribunal the applicant states they protested the following at the [June] 2018 protest: [slogans deleted]. She states that they carried a flag of the Republic of Vietnam before 1975 at the protest, which ‘symbolises a progressive, free and democratic country that the Communist Party has always been so fiercely hostile that the Community Party used force to rob in 1975’. She added that anyone who carries this flag will be subject to suppression and severe reprisals and referred to a man – Mr [A] – who was tortured and then killed, which she is afraid will happen to her and her family if they return to Vietnam. At hearing the applicant said Mr [A] was imprisoned (and then killed) in Vietnam after the authorities discovered a South Vietnamese flag at his home. She provided a copy of a screenshot of a photo of his body (allegedly), which she had captured from YouTube.
It is unclear to the Tribunal whether the Vietnamese government would come to know that the applicant and her son and husband attended a protest in [City 1, Australia] [in] [2018] just because they uploaded photographs and a video on the applicant’s [Social media] page. However, as mentioned, country information indicates that they do monitor online activity. Nonetheless, even if they did, the Tribunal finds remote the chance that the applicants would face significant harm from the authorities as a result, given it was only one protest in 11 years in Australia (even if holding a South Vietnam flag), even taking into account that they may have shared some messages online about matters which could be construed as anti- (Vietnamese) government, such as criticism of the Formosa environmental disaster. As discussed at hearing DFAT indicates that whilst political and human rights activists who openly criticise the government, the CPV and its policies are at high risk of attracting adverse attention from the authorities, the treatment from the authorities generally depends on the individual’s level of involvement.[14] For the reasons discussed earlier the Tribunal is not satisfied that the applicant or her husband have such a profile that they would be at risk of significant harm from the authorities because of their actual or imputed political opinion (arising out of attending one protest in 11 years and occasionally sharing posts on [Social media]) if removed from Australia to Vietnam.
[14] DFAT Country Information Report Vietnam, 21 June 2017 at 3.25.
The Tribunal has considered if the applicants would be politically active on return to Vietnam and whether they would face a real risk of significant harm as a result. The Tribunal has not accepted the applicant was politically active, including by speaking out against certain matters including religious persecution in Vietnam. For reasons set out earlier the Tribunal has accepted the applicants attended a protest in Australia in [2018]. The Tribunal also accepts the applicants may share posts online at times, some of which could be seen as anti-Vietnamese government but is not satisfied such activity would result in them being significantly harmed by the authorities as a result. Taking into account these considerations the Tribunal is not satisfied that the applicants would be politically active at all on return to Vietnam. They may occasionally share information and posts online but the Tribunal is not satisfied on the evidence before it that this would result in a real risk of significant harm. For these reasons the Tribunal finds that the first and second named applicants do not face a real risk of significant harm from the authorities in Vietnam on actual or imputed political opinion grounds if removed from Australia to Vietnam in the foreseeable future.
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 applicants being removed from Australia to Vietnam, there is a real risk they will suffer significant harm.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Nicole Burns
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6508

1 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal