1727811 (Refugee)

[2018] AATA 433

1727811 (Refugee) [2018] AATA 433 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727811

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Jason Pennell

DATE:15 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made 15 February 2018 at 10.23am

CATCHWORDS
Refugee – Protection Visa – Vietnam – Fear of harm from partner’s family – Social customs – Child born out of wedlock – Country information does not support claim – Charged with drug related offences in Australia – Chance of applicant being subject of death penalty – Chance remote – Degree of hardship in being removed from Australia – Harm suffered not significant

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
WZARI v MIMAC [2013] FCA 788

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The visa applicant applied for the visa [in] August 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal by video link on 5 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country. [2]

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

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

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vietnam, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant first arrived in Australia [in] March 2008 on a student [visa] and has not departed since. [In] February 2009 his student visa was cancelled under s.116 of the Migration Act.  From [February] 2009 to [September] 2017 the applicant remained in Australia unlawfully for a period of 8 years, 6 months and 30 days. [In] March 2017 the applicant was arrested for [drug related offences].  [In] September 2017 the applicant lodged a permanent protection visa (subclass 866) application and an associated criminal bridging visa E was granted.

3. At the hearing the applicant informed that the Tribunal that [in] November 2017 he had been granted bail and his trial in relation to his criminal charges was listed to be heard in September 2018. The applicant continues to be detained in [an immigration detention centre] in [Australian State 1].

Country of nationality

1. A non-certified copy of the applicants expired Socialist Republic of Vietnam passport [number] issued [in] 2006 and expired [in] 2011 is on the departmental file ([file number]).[3] The passport shows that the applicant was born on [birth date] in Nghe An, Vietnam. The delegate’s decision records that the applicant provided a copy of his expired passport to the department and that the delegate had utilised ICSE, ICSE Offspring, CSP and TRIM systems to check his identity. The delegate noted that the information on all the systems supported the applicants claimed identity, nationality and citizenship. As such the delegate was satisfied that he had provided sufficient evidence in support of his identity and accepted that the applicant was born in Vietnam and his country of citizenship is Vietnam. 

   [3] DIBP Folio 36

2. The Tribunal is therefore satisfied that the applicant is a Vietnamese national. Accordingly, the protection claims will be assessed against Vietnam as the country of reference and 'receiving country' respectively. There is no evidence to suggest that the applicant has the right to enter and reside, whether temporarily or permanently, in any other country. The Tribunal is satisfied, on the basis of the evidence before it, that the applicant does not have a right to enter and reside in any other country and therefore finds that the applicant is not excluded from Australia's protection obligations under s36(3).

CONSIDERATION OF CLAIMS AND EVIDENCE

Refugee assessment

16.The applicant set out his initial protection claims in his visa application as follows:

Why did you leave that country?

‘I left Vietnam for studying in Australia.’

What do you think will happen to you if you return to that country?

‘I will not be able to live there.’

Did you experience harm in that country?

Yes.  Threats and harm against myself and my family.’

Did you seek help within the country after the harm?
Yes.  Police authorities – helpless.’

Did you move, or try to move, to another part of that country to seek safety?

‘It does matter where I go, I cannot return to the country.’

Do you think you will be harmed or mistreated if you return to that country?

‘Yes. Threatened and killed.’

Do you think the authorities of that country can and will protect you if you go back?

‘The authorities would not help me.’

Do you think you would be able to relocate within that country?

I cannot live there anymore.’ 

1. On review the applicant provided details about his background, his specific protection claims and the status of his criminal proceedings. He claims he will be threatened or killed upon return to Vietnam for the following reasons:

   ·That his partner’s family in Vietnam do not approve of him and their relationship.

   ·Both his family and his partner’s family disapprove of the fact that they have had a child before getting married. He claims that by having a child out of wedlock he and his partner have dishonour’s their families having brought sham upon them. 

   ·His partner’s family has demanded that she leave the applicant threatening to cut her off from the family if she does not. 

   ·That his partner’s brothers have threatened to harm him, including killing him.

   ·The applicant wants to be released from detention to be with his partner and their child.

2. The applicant did not provide the Tribunal with any written submissions or any other documentation in support of his claim. However, the applicant did provided oral evidence to the Tribunal about his background and specific protection claims. They are summarised as follows:

   (a)The applicant was born in Nghe An province, Vietnam on [birth date]. The applicant’s mother and father are alive and continue to live in Nghe An Province. He has a brother who lives in Vietnam and two sisters, one living in [Country 1] and the other is living in [Country 2].

   (b)The applicant attended [a school] in Da Nang and completed year 12. He said that he did not obtain the results to gain entry into University so he applied to attend a college in Australia. He arrived in Australia [in] March 2008 on a student visa and attended [a college] in [Australian City 1] for a period of 6 months [studying]. He has not returned to Vietnam since arriving in Australia.

   (c)[In] March 2017 the applicant was charged with [drug related offences] (‘the charges’). A hearing was listed for 3 November 2017. The applicant’s evidence was that [in] November 2017 he was granted bail and that a trial had been listed for September 2018. The applicant did not provide any documentation to the Tribunal in support of his evidence in relation to the charges. Nevertheless, the Tribunal accepts the applicant’s evidence that he had been granted bail and that a trail was listed for September 2018.

   (d)While in Australia the applicant meet and formed a relationship with his partner, [Ms A]. The applicant and his partner are not married but have been living together as husband and wife. On [date] they had a [daughter].

   (e)The applicant’s evidence was that his partner’s family are from the same province as his family in Vietnam. He said that neither his partner’s family nor his family had been to Australia. As a consequence he said that he had never met his partner’s family. He said that he had only briefly spoken to them over the telephone from time to time. His evidence was that his partner had [a number of] brothers.

   (f)The applicant said that after 9 years he had become used to living in Australia. He said that his partner’s family did not approve or accept him nor did they approve of the fact the he and his partner were in a relationship. He said that his partner informed her family of the birth of their daughter by telephoning after she was born. He said that upon telling her family that she had a daughter they became angry claiming that they had been dishonoured by her having brought great shame on them.  The applicant’s evidence was that his partner’s brothers had threatened to harm him and even kill him. However, he confirmed that the threats by his partner’s brothers were not made directly to him. Rather they made the threat to harm him when speaking to his partner on the telephone. As such he was told about the threats by his partner.

   (g)The applicant said that both his family and his partner’s family had meet in Vietnam and had argued about the fact that he and his partner were in a relationship and that they have had a child out of wedlock.  His evidence was that both families were upset with both him and his partner for dishonouring them and bringing great shame upon them.

   (h)The applicant’s evidence was that his partner’s family had demanded that she leave the applicant. He said that if she did not leave him her family had threatened to cut her off from the family and withdraw all support for her. He said that as a result of her family’s threat to exclude her and to remove all support, his partner now tells her family that she has separated from the applicant.

   (i)The applicant said that he wanted to be released from detention so that he could be with his partner and child. He said that since being moved to [an immigration detention centre] in [Australian State 1] from [City 1], it has been particularly difficult for them to visit him. 

Country Information.

Family Relationships

1. The Tribunal has considered the applicant’s claims that, in the event he is returned to Vietnam, he will be harmed by partner’s family in light of the available county information.

2. The country information advises that generally, in Vietnam, households are patrilineal.[4] [5] After a wedding, the bride will often move into her new husband’s family’s home.[6] [7] For Vietnamese women, the departure from their parents’ home and the resettling in their husband’s home is “one of the defining journeys of their lives”.[8] From this time on, a newly married Vietnamese woman becomes a child of her husband’s family as well, and although she now has important responsibilities to her new family, ‘her ties to her own mother and father will never be severed’.[9] The couple generally live with the husband’s parents at least until children are born.[10] In urban settings, it would be common to find two or three generations living within one home. Generally, the eldest son inherits the family home, with younger sons inheriting land or other items. Divorce is permitted in Vietnam, and divorce rates have increased in urban areas. However, many women are reluctant to seek a divorce due to associated stigma and economic uncertainty.[11] [12]

   [4]  Belanger, D. 1998, ‘Regional Differences in Household Composition and Family Formation Patterns in Vietnam’, Journal of Comparative Family Studies, Vol. 31, No. 2, p. 172 – <Attachment>

   [5]   ‘Family’ 2007, Depauw University website – Accessed 23 August 2011 – <Attachment>

   [6]   Marlarney, S.K. (undated), ‘Countries & Their Culures: the Culture of Vietnam’, Everyculture.com – Accessed 7 September 2010 – <Attachment>

   [7]   Pham,  N.D. ‘A Wedding in Vietnam,’ (undated), TOPICS Online Magazine website – – Accessed 10 May 2005 – <Attachment>

   [8]          Malarney, S.K. 2003, ‘Weddings and Funerals in Contemporary Vietnam’, in Vietnam: Journeys of Body, Mind and Spirit, eds N.V. Huy & L. Kendall, University of California Press, Berkeley & London, p. 178

   [9]   Op Cit, p. 178 – Accessed 17 January 2008– <Attachment>

   [10] Crawford. A C, 2000, ‘Customs and Rites’, Customs and Cultures of Vietnam, Chapter 6, Military Living website – Accessed 16 May 2005 – <Attachment>

   [11] Marlarney, S.K. (undated), ‘Countries & Their Culures: the Culture of Vietnam’, Everyculture.com – Accessed 7 September 2010 – <Attachment>

   [12] US Department of State 2011, Country Reports on Human Rights Practices for 2010 – Vietnam, 8 April Section 6 – <Attachment>

3. Authority within the household generally rests with the eldest male, and to some extent, his wife.[13] One source states that the father is head of the family and the public face it presents to the world, whilst the mother is considered “chief of the home”, responsible for food, health, hospitality, and discipline of children.[14] The mother is sometimes referred to as Noi Trung, or minister of the interior.[15] [16]

   [13]        Marlarney, S.K. (undated), ‘Countries & Their Culures: the Culture of Vietnam’, Everyculture.com – Accessed 7 September 2010 – <Attachment>

   [14] Australian Catholic University & Centacare 2008, ‘Support the needs of Vietnamese Families of Drug Users’, Centacare website, June, p. 7 – Accessed 23 August 2011 – <Attachment>

   [15] Australian Catholic University & Centacare 2008, ‘Support the needs of Vietnamese Families of Drug Users’, Centacare website, June, p. 7 – Accessed 23 August 2011 – <Attachment>

   [16] Migrant Information Centre Eastern Melbourne 2010, ‘Vietnamese Cultural Profile’, Migrant Information Centre Eastern Melbourne website, April – Accessed 23 August 2011 – <Attachment>

4. The mother in a family bears responsibility for bringing up “moral and virtuous” children and to obey her husband. As women fulfil these responsibilities, they are said to acquire phuc duc, a store of collective merit which is passed on to future generations. This collective identity means that any dishonourable activity by Vietnamese children brings shame to their parents, and may leave the mother open to harsh criticism. Children, for their part, are indebted to their parents for bringing them into life, and are therefore expected to obey their parents past the age of marriage into old age, and worship them after death.[17]

   [17] Australian Catholic University & Centacare 2008, ‘Support the needs of Vietnamese Families of Drug Users’, Centacare website, June, p. 7 – Accessed 23 August 2011 – <Attachment>

5. Elderly Vietnamese are traditionally cared for by their families.[18] Responsibility for the parents traditionally falls to the eldest son[19], with his wife or unmarried family members often taking on the actual day-to-day caring duties.[20] However, one source reported that, particularly in the south, parents have often chosen which child to live with based on economic and sentimental factors, rather than by this tradition.[21]

   [18] Migrant Information Centre Eastern Melbourne 2010, ‘Vietnamese Cultural Profile’, Migrant Information Centre Eastern Melbourne website, April – Accessed 23 August 2011 – <Attachment>

   [19]Belanger, D. 1998, ‘Regional Differences in Household Composition and Family Formation Patterns in Vietnam’, Journal of Comparative Family Studies, Vol. 31, No. 2, p. 172 – <Attachment>

   [20] ‘Culturally Appropriate Geriatric Care: Delivery of Care – Working with Families’ (undated), Stanford School of Medicine website – Accessed 23 August 2011 – <Attachment>

   [21]Tran, P. P. 2007, ‘Work and family roles of women in Ho Chi Minh City’, International Education Journal, Vol. 8, No. 2, p. 284-292 – Accessed 23 August 2011 – <Attachment>

1. Ancestors are considered to be living in another world but still living in the present and watching over the living. They play an important part in family relationships.[22] Malarney has called spirit worship “the core of religious practice for almost all Vietnamese. The most important spirits are the souls of the ancestors. Almost all families have altars in their homes where they perform rites for family ancestors, especially on the deceased’s death anniversaries and the Lunar New Year.” ^[23] One source stated that the “link between father, son and ancestors is the vertical axis of the family system and is a foundational organising principle of social life”.[24]

De facto relationships

[22] Australian Catholic University & Centacare 2008, ‘Support the needs of Vietnamese Families of Drug Users’, Centacare website, June, p. 7 – Accessed 23 August 2011 – <Attachment>

[23] Marlarney, S.K. (undated), ‘Countries & Their Culures: the Culture of Vietnam’, Everyculture.com – Accessed 7 September 2010 – <Attachment>

[24] Australian Catholic University & Centacare 2008, ‘Support the needs of Vietnamese Families of Drug Users’, Centacare website, June, p. 7 – Accessed 23 August 2011 – <Attachment>

1. Article 11 of the Marriage and Family Law provides that de facto couples do not enjoy the same legal status as married couples. It states that a ‘man and woman who fail to register their marriage but live together as husband and wife shall not be recognized by law as husband and wife’.[25]  The USDOS advises that ‘authorities do issue certificates verifying cohabitation but these do not constitute legal marriages’.[26]

   [25] The Marriage and Family Law of the Socialist Republic of Vietnam 2000 (Vietnam), Law No.22/2000/QH10,art 11(1), promulgated 9 June 2000 (effective 1 January 2001), Socialist Republic of Vietnam Government Web Portal < Accessed 16 July 2012 <Attachment>

   [26] US Department of State n.d., Vietnam Reciprocity Schedule < Accessed 23 October 2012 <Attachment>

2. Generally speaking, ‘people who don’t get married in Vietnam are considered abnormal’.[27] In 2008, Viet Nam News[28] reported that an increasing number of couples are ‘defying traditionalists and choosing to cohabit first, which may lead to marriage but may not’. The article noted a persisting stigma towards cohabiting couples, citing a study of 228 de facto couples in Ho Chi Minh City.[29] Few respondents to the 2006 Result of Nation-Wide Survey on the Family in Viet Nam: Key Findings favoured the notion of cohabitation:

   ‘Few respondents favoured the idea of men and women ‘co-habitating’; 1.3 percent of adolescents aged 15-17 years accepted the idea. Older groups are accepting this idea in a higher percentage, however still under 3%. They held this to be a self-indulgent lifestyle which contradicts traditional cultural values and which can “cause bad effects in many aspects for women’.

   Data also suggested that acceptance of this idea depended on the closeness of the relationship. Just under 4 percent of respondents approved of pre-marital sex in general. However, if the partners were definitely going to get married, this figure rises significantly – about 13 percent of elderly approved, about 20 percent of 18-60 year-olds, and of adolescents approved. Regardless of whether the partners were going to get married or not, the acceptance level for single women having pre-marital sex was consistently lower than that for single men having pre-marital sex.

   [27] Vu, L 2009, ‘Age at first Marriage in Vietnam: Trends and Determinants’, Population Association of America 2009 Annual Meeting Program, Princeton University website, p.2 < Accessed 2 February 2013 <Attachment>

   [28] Major English Language Daily, based in Vietnam. See < The Vietnamese government places significant restrictions on print and other media. See Freedom House 2012, Freedom of the Press 2012 – Vietnam, 16 November < > Accessed 1 February 2013 <Attachment>; Reporters Without Borders 2011, World Report – Vietnam, October, UNHCR Refworld < Accessed 1 February 2013 <Attachment>

   [29] Nguyen, H 2008, ‘Traditional values of marriage tested’, Viet Nam News, 7 October < Accessed 1 February 2013 <Attachment>

3. Many urban or highly-educated survey respondents reportedly showed more acceptance of pre-marital sex and cohabitation.[30] The aforementioned 2004 book Marriage and the Family in Viet Nam Today notes that an increasing number of children are born out of wedlock as more couples opt for cohabitation. The author also notes that many de facto couples conceal their relationship from parents and relatives, and makes the following comments regarding pre-marital sex and cohabitation:

   ‘In Viet Nam nowadays, many men and women, especially in big cities, have conception of love, marriage and family life very different from the past. Some are good, and some are bad. A number of people influenced by the Western “free” way of life, conduct love affairs for sexual pleasure and abuse sexual relations (their love is far from romantic or sentimental). Those men and women enter into sexual relations very easily; many live together like husband and wife without marriage. Some of them follow the Western model of “experimental marriage”. We can also notice the practice of “rotational co-habitation” among groups of men and women or “collective sexual relation”. These are manifestations of serious debauchery.[31]

   [30] United Nations Children’s Emergency Fund 2008, Result of Nation-Wide Survey on the Family in Viet Nam 2006: Key Findings, June, pp.23, 46 < Accessed 25 June 2012 <Attachment>

   [31] See Lê, T 2004, Marriage and the Family in Viet Nam Today: Questions and Answers, Thế Giới, Hanoi, pp. 43; 53 (MRT-RRT Library).

4. By contrast, the same source reports that in some localities and among some ethnic groups, it is common to organise a wedding only after a woman becomes pregnant. In Thuan Quy Village, Binh Thuan province, it is customary for a man to live with his would-be wife on a temporary basis, for instance for three days every month. If the woman becomes pregnant, the couple will marry. If not, the couple may part ways after a given amount of time. These practices are reportedly due to the paramount importance Vietnamese tradition attaches to having children.[32]

Police

[32] See Lê, T 2004, Marriage and the Family in Viet Nam Today: Questions and Answers, Thế Giới, Hanoi, pp. 16-18 (MRT-RRT Library).

1. As to the effectiveness of the Vietnam police force the Department of Foreign Affairs and Trade Report (‘DFAT’) dated 21 June 2017 (’the DFAT Report’) advises as follows:[33]

   5.4 Internal security is the responsibility of the Ministry of Public Security, although the military maintains public order in the event of civil unrest in some remote areas. Police organisations exist at the national, provincial, district and local levels, and are subject to the authority of people’s committees at each level. The police are generally effective at maintaining public order. The Ministry controls the police, a special national security investigative agency, immigration and other internal security units. Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.

   5.5 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice police organisations operate with significant discretion and little transparency. The Vietnamese law enforcement agencies are highly efficient in controlling public disturbances and communal violence. However, other police capabilities, including many investigative capabilities, remain limited and training and resources are inadequate to meet current and emerging transnational crime issues facing Vietnam and the broader region.’

Internal Relocation

[33] Department of Foreign Affairs and Trade Report dated 21 June 2017 p.22

1. Finally as to the possibility of the applicant being able to reallocate to another part of Vietnam the DFAT report notes:[34]

   5.12 Internal relocation is common, with large scale urbanisation occurring in recent decades alongside other migration for economic purposes. Younger members of ethnic groups schooled in the Vietnamese language are significantly more likely to overcome linguistic and cultural barriers to successfully relocate.

   5.13 Police require citizens and foreigners to register when staying overnight in a location outside of their own homes. This is enforced more strictly in some areas, such as Central and Northern Highlands districts. Moving without formal approval from the authorities can restrict access to legal residence permits, public education and healthcare benefits (see Household Registration).

   5.14 The strong and effective Vietnamese public security network means that there are few options for internal relocation to seek protection from state authorities.’

   [34]  Op Cit p.24

Criminal convictions in Australia

1. The Tribunal has considered the implications of the applicant returning to Vietnam with a criminal record in Australia.

2. In this case the applicant is facing serious [charges] (‘the charges’). The applicant did not provide any documentary evidence of the charges. However, based on the applicants oral evidence and the fact that the charges are recorded in the delegate’s decision, the Tribunal accepts and finds that the applicant has been charged with the criminal offence.  

3. Australia must disclose information about his criminal record to the Vietnamese authorities on his return due to his visa cancellation. Article 35 of the Vietnamese Penal Code 1999 provides that the death penalty is a ‘special penalty only applied to persons committing particularly serious crimes’. [35] There are 22 crimes under the current Penal Code where the death penalty can be applied, including drug-related offences.[36]

   [35] Op Cit p.19   

   [36] No offence carries a mandatory death penalty and does not apply to juvenile offenders (persons under 18), pregnant women and women with a child under the age of three years at the time of the offence

4. However, the principle of double jeopardy applies in Vietnam.[37] Persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.[38] Article 6 of the Penal Code provides that people, who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’.[39] There is no specific list of offences; however, if the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they could be examined for penal liability on return to Vietnam.[40]

   [37] Department of Foreign Affairs and Trade Report dated 21 June 2017 p.20

   [38] ibid

   [39] ibid

   [40] ibid

5. The Tribunal raised the possibility of the applicant being examined for penal liability in Vietnam for the offences committed in Australia. In particular, the fact that a conviction for possession of even small amounts of narcotics in Vietnam carries the death penalty and it is reported that in 2006 most executions were for drug-related crimes. The applicant said that he was aware of the issue and that he wanted to have the charges heard and determined in Australia, including any penalty. He said that whatever the outcome, he wanted to remain in Australia.

6. The Tribunal has considered the applicants position as to what might happen to him if he returns to Vietnam with a criminal history for drug related offences in Australia.  As discussed at hearing, DFAT advises that the principle of double jeopardy does apply in Vietnam, which means he cannot be tried for the same crimes he committed in Australia. Therefore he cannot be tried for any of the crimes to which he has served his sentence in Australia, including (historical) drug related crimes. The applicant is currently in detention and unlikely to be released pending the hearing determination of the charges. There is no reason to expect that, in the event that he is found guilty of any of the charges that he would not complete any penalty imposed upon him.

7. In any event, DFAT’s advice that a person who has committed offences overseas ‘where the sentence has not been served, may be ‘examined for penal liability in Vietnam’ and ‘if the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they could be ‘examined’ for penal liability on return to Vietnam’ [Tribunal emphasis], the Tribunal finds that the chance the applicant would be examined for penal liability in Vietnam in relation to his offences in Australia, and face serious harm by the Vietnamese authorities as a result, is remote. In addition, DFAT also advises that ‘No punitive action may be taken against a person who has been deported for committing a serious criminal offence overseas’[41].

   [41] VNM 12377 Return of a Vietnamese National with Criminal Conviction, Department of Foreign Affairs and Trade (DFAT), 15 September 2011, CX272689

8. Therefore, based on the available country information the Tribunal finds that there is no real chance that the applicant will face serious or significant harm from the authorities on return to Vietnam because he had been convicted of a drug-related or other crime in Australia. 

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[42]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[43]

   [42] s.5AAA Migration Act 1958.

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

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[44] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

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

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[45] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

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

5. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. In this regard, the applicant provided plausible, emotionally compelling and persuasive answers to the Tribunal’s questions about his relationship with his partner and their daughter. Accordingly the Tribunal accepts the applicants evidence and finds that:

   (a)The applicant was born in Nghe An province, Vietnam on [birth date].

   (b)The applicant’s mother and father are alive and continue to live in Nghe An Province.

   (c)The applicant has a brother who lives in Vietnam and two sisters, one living in [Country 1] and the other is living in [Country 2].

   (d)The applicant attended [a school] in Da [Nang] and completed year 12.

   (e)The applicant arrived in Australia [in] March 2008 on a student visa and [studied] at [a college] in [City 1] for a period of 6 months.

   (f)The applicant has not returned to Vietnam since arriving in Australia.

   (g)That [in] March 2017 the applicant was charged with [drug related offences].

   (h)The applicant has been granted bail and that a trail has been listed to commence in September 2018.

   (i)The applicant is in a de facto relationship with his partner, [Ms A].

   (j)The applicant and his partner have a [daughter], [birth date].

   (k)The applicant is currently detained at [an immigration detention centre] in [Australian State 1].

6. Based on the country information and in the absence of any evidence to the contrary, the Tribunal accepts and finds that the applicant’s partner’s family did not approve of him. Further, the Tribunal accepts and finds that as a result of the applicant and his partner having a child out of wedlock both their families were angry.

7. The applicant’s written claim states that both he and his family had received threats. However, the applicant’s evidence was that only he had received threats from his partner’s brothers which had not been made to him directly. There was no evidence of his family having received any threats.

8. In addition the applicant’s written claim states that he is not able to live in Vietnam anymore. His evidence was that that after 9 years he had become used to living in Australia and he wanted to remain to be with his partner and child. Therefore, other than the than the threats made against him by his partner’s brothers the applicant did not identify and other harm he may suffer in the event he returns to Vietnam. 

9. The Tribunal acknowledges that the applicant may have a subjective fear of being harmed by his partner’s family. However, the county information does not support the applicant’s claim that he will be harmed in the event that he is returned to Vietnam. While traditionally marriages would be arranged, men and women now have much greater autonomy to form their own relationships independent from their family.[46]  Increasingly, couples are ‘defying traditionalists and choosing to cohabit first, which may lead to marriage but may not.’[47] Therefore, it appears that any shame that may have been brought upon their families as a result of them having a child out of wedlock is greatly diminished from what it would have been the case in the past.

   [46]        Thi, L. 2005, Single Women in Vietnam, The Gioi Publishers, Hanoi, p.26 <Attachment>

   [47] Major English Language Daily, based in Vietnam. See < The Vietnamese government places significant restrictions on print and other media. See Freedom House 2012, Freedom of the Press 2012 – Vietnam, 16 November < > Accessed 1 February 2013 <Attachment>; Reporters Without Borders 2011, World Report – Vietnam, October, UNHCR Refworld < Accessed 1 February 2013 <Attachment>

1. During the course of his evidence the applicant stated that his partner told her family that they are no longer in a relationship. As a result her family continues to support his partner and their child in Australia. It therefore appears that any shame the family is said to have incurred has not been enough to deny their daughter and grandchild support. The fact that her family now believe that they are no longer in a relationship appears to have reduced the risk of any perceived threat to the applicant. The fact that the applicant is in detention in [another city in Australia] while his partner remain in [City 1], that he may be jailed as a result of the charges and his evidence that he does not have any contact with his partners family means that they are unlikely to discover that they are still in a relationship.

2. The applicant in response to the question as to whether the he had sought help in Vietnam after the harm the applicant states that he did. He says that he sought help from the police authorities and that they were ‘helpless.’ However, the applicant did not give any evidence of having sought help from the police in Vietnam.  In addition, he gave no evidence of having suffered any harm in Vietnam before coming to Australia. Given that he has not returned to Vietnam since arriving in Australia and that the threats only occurred while he was in Australia, it is extremely unlikely that he sought help from the police in Vietnam. As such the Tribunal finds that the applicant did not seek help from the police in relation to any alleged threat in Vietnam. 

3. The threats the applicant claims to have received from members of his partner’s family were not made directly to him. As such, the applicant was not able to specify the nature of the threats made against him except in very broad and vague terms. For example, save to say that the threats were made in telephone conversations between his partner and her brothers, he was not able to say precisely which of his partners made the threats and when. In fact, the applicant was not able to tell the Tribunal any of the names of his partner’s brothers.    

4. Therefore, in the absence of any direct evidence of the telephone conversations between the applicant’s partner and her brothers, the Tribunal does not accept the applicant’s evidence in relation to the threats and finds that his partner’s family did not make the threats against the applicant as alleged.

5. Therefore, having both ss.5J(1)(a) and 5J(1)(b), alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that there is not a real chance the applicant will suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.

6. In all the circumstances the applicant does not have well-founded fear of persecution based on his claim of being threatened by his partner’s family due to the fact that they disapprove of him and that they had a child out of wedlock and as such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

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

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that his partner’s family have threatened to beat him and kill him in the event he returns to Vietnam. However, the Tribunal, for reasons set out above, has found that the applicant does not face a real chance of serious harm if he returns to Vietnam from the authorities.

3. 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.[48] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It therefore follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Vietnam as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.

Removal of Applicant from Partner and Child

[48] 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].

1. The Tribunal has considered if the act of removing the applicant from Australia to Vietnam itself away from his partner and child of itself would meet the definition of ‘significant harm’ s.36(2)(aa). However for the reasons that follow the Tribunal also does not accept that the actual act of removal of the applicant from Australia falls within the scope of s.36(2)(a) or s.36(2)(aa), as it would appear from the words of s.36(2)(a) and s.36(2)(aa) that these provisions do not encompass harm of this nature.

2. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[49] The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[50] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.[51] Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[52]  Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment.  The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[53]

   [49] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.

   [50] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].

   [51] Ibid at [63].

   [52] Ibid at [64].

   [53] Ibid at [65].

3. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.

4. Similarly, the Tribunal has considered if the applicant has a well-founded fear of persecution pursuant to s.36(2)(a) of the Act by reason of him being removed from Australia to Vietnam away from his partner and child. Having considered s.5J(1)(a) and s.5J(1)(b) of the Act the Tribunal finds that there is no real chance upon his return to Vietnam that he will suffer serious harm for any of the reasons set out in s.5J(1)(a) by reason of the fact that he has been separated from his partner and child upon his returned to Vietnam.

5. At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

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

CONCLUSIONS

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a) and 5J(1)(b). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Jason Pennell
Member