1729152 (Refugee)
[2018] AATA 5064
•3 December 2018
1729152 (Refugee) [2018] AATA 5064 (3 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1729152
COUNTRY OF REFERENCE: Vietnam
MEMBER:Michael Hawkins
DATE:3 December 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.
Statement made on 03 December 2018 at 3:46pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – imputed political opinion – anti-government – particular social group – failed asylum seekers – conflict with local authorities – land dispute – victim of assault and detention – data breach – visit by Vietnamese officials to Australian immigration detention centre – protection (Class XA) visa decision under review set aside and substituted with protection (Class XD) visa
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 45AA, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 24 June 2014 and the delegate refused to grant the visa on 23 January 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.
The applicant appeared before the Tribunal on 22 March 2016 and again on 11 April 2016 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant sought judicial review of that decision by the Federal Circuit Court. The Court ordered, by consent, [in] July 2016, that the original decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law. It was indicated that the original decision was affected by jurisdictional error in that the application for a Protection (Class XA) visa was, by the operation of section 45A of the Act and regulations 2.08F of the Regulations, to be treated as an application for a Temporary Protection (Class XD) visa.
The applicant appeared again before the Tribunal on 24 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. That Tribunal set aside the decision refusing to grant a protection (Class XA) visa and substituted a decision that the application for the Protection (Class XA) visa was not valid and could not be considered.
The Minister sought judicial review of that decision by the Federal Circuit Court. The Court ordered, by consent, that that decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law.
The applicant appeared again before the Tribunal on 21 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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 issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the substantive decision under review should be affirmed. To give effect to the affirmation of the delegate’s decision, the Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.
Background:
The applicant is a [age] year old man from the [province] of Ha Tinh, Vietnam.
The applicant is of the Christian Catholic faith, is of Vietnamese ethnicity and speaks Vietnamese.
The applicant is single.
The applicant departed Vietnam illegally by boat [in] April 2013 and travelled to [Country 1]. He arrived in Australia by boat without valid identity documents [in] May 2013.
The applicant applied for a protection visa on 24 June 2014.
It is clear from the delegate’s decision, a copy of which was provided to the previous Tribunal by the applicant, that the delegate was not satisfied as to the applicant’s identity or age. He had no documents with him, and has never produced identity documents to the Department. He has consistently claimed since arriving in Australia that he was born on [Date 1]. Departmental officers formed the view that he was older than he claimed, and recorded his date of birth as [Date 2].
The delegate accepted for the purposes of the decision only that his name is as claimed, and his date of birth was [Date 2]. So far as the Tribunal is concerned, (as it was with the previous Tribunal), it is unnecessary to determine whether the applicant was born [on Date 1 or Date 2].
Hearing:
The applicant attended the Tribunal on 21 November 2018. The hearing was assisted by an interpreter in the Vietnamese language. His representative accompanied him at the hearing.
The Tribunal opened the hearing by taking some time to discuss with the applicant the circumstances of how he came to be before the Tribunal that day.
The Tribunal broadly discussed the applicant’s visa applications, refusals and appeals, and the dates of each of them. The Tribunal discussed the date he made his protection visa application, the decision of the delegate and his application for review to the Tribunal.
The Tribunal discussed with the applicant his appeal to the Federal Circuit Court of Australia and the decision of that Court. It also discussed the further decision of the Federal Circuit Court of Australia, noting the Court’s ultimate remittal of the matter to this Tribunal.
The Tribunal advised the Representative that in its decision, it would set out in some detail the decision of the delegate and the decision of the previous Tribunal. The Tribunal explained to the Representative that it would do that as it appeared from the submission of the Representative that she appeared satisfied with the findings of fact of the previous Tribunal, but the basis of her submission was that this Tribunal ought take account of more recent Country Information and apply that Country Information to the findings made by the previous Tribunal.
The Tribunal summarised the findings and decision of each of the Delegate and previous Tribunal and asked the Representative whether she agreed with the summary so provided. The Representative agreed that the summation was accurate. The Representative also agreed with the Tribunal’s view of the nature of her submission, that is, that she did not dispute the findings of the previous Tribunal, but sought to have this Tribunal take account of more recent Country Information.
The applicant’s claims are set out in a statutory declaration submitted with his application (errors in original):
5. I left Vietnam because I was targeted by the authorities who believed I was undertaking antigovernment activities, creating disruption for the local government officials.
6. Just prior to November 2012, my grandmother started to negotiate with the local authorities, who were trying to reclaim her land. The purpose of the meetings was to negotiate compensation to her. Her property was next door to [a state owned] property used for state-sponsored [activities]. The local authorities decided to reclaim my grandmother's property in order to incorporate it into their state owned property.
7. She had three meetings with the authorities but was unable to come to an agreement on the exact amount of money for compensation.
8. In November 2012 I was present when the Land Management Representative arrived at our house together with the Vice Chairman of the commune and the local police. They had come to forcibly dispossess us of the land. They arrived with a bulldozer ready to demolish the house and level the land. My grandmother started to cry, I ran out of the house to try to stop the officials and I removed the survey sticks which they had just put in place ready for a bulldozer. I pushed them, then trying to stop them from entering the house.
9. The Police arrested me due to this behaviour and took me to the headquarters of the commune ([Village 1]). I was detained there until 2 PM when two men ([Mr A] and another unknown person) entered the room and confronted me asking me why I resisted them.
10. Then the other unknown person hit me hard on the right side of my face and I experienced enormous pain. He then hit me in the chest area and I collapsed from the pain. I became unconscious. I was left alone and later fell asleep.
11. I remember waking up at midnight, lying in pain, in a very small room, tired and feeling exhausted emotionally. I was very fearful knowing that they were accusing me of resisting public servants which is an offence in Vietnam. Because it was a very basic room with one lock (not a police station lock-up) I tried to get out. I was worried about being beaten again or harmed in some other way. I broke the door lock and left in the middle of the night. I travelled to [District 1], my aunt's house which was [number] hours by bus ([number] kilometres) away.
12. When my Aunt saw my swollen face she became very distressed and help me with medical treatment so I could heal. She allowed me to stay there in hiding.
13. In December 2012, I met a man ([named]) through the neighbours who introduced me to a smuggler. My auntie paid him for me to leave.
14. I departed Vietnam by boat [in] of April 2013 and after a very rough sea trip arrived in [Country 1]. I departed by boat [in] May, arriving in Australia [later in] May 2013 after being intercepted by the Australian Navy. I was taken to [City 1].
15. My grandmother approached the commune authorities for a negotiated payment for land reclamation and was unable to obtain any compensation. She told me that because I had disrupted the work of the public servants, then committed an offence, was detained, then escaped, the same government authorities refused to negotiate with my grandmother. She had never signed an agreement to enforce the legal right to receive compensation at a specific amount. Because of this situation she informed me on 20 October 2012 why she was unable to receive any money. She had no home, was elderly and was forced to relocate with few possessions. She is now being looked after by my [auntie]. My brother left the school and neither I nor my grandmother know where he is.
What I fear may happen to me, by who and why, if I return to that country
16. I fear that the local government authorities who detained me will target me again. This is because I escaped from their office and have committed an offence against the public servants of the government.
17. Without being charged for committing any criminal offence, I could still be detained and harmed by these authorities due to the political power they have.
18. If I return to Vietnam as a failed asylum seeker, I could be imprisoned by the government because I have left Vietnam illegally. I am now aware that the criminal code (91 section 1) allows the central government to charge and Convict me of a criminal offence, which could attract 3 to 12 years imprisonment.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country
19. The authorities cannot protect me because they are the same entity that is targeting me. The national and local authorities are linked, working to support and protect each other.
20. It is in the political and economic interests of the Commune level authority not to pay compensation to us and enforce their position by removing me from the area. I am aware that the Australian government advertised my details accidentally on their website, including my detention details. I consider the Vietnamese authorities will now be aware that I am seeking to live in a Western anti-communist society, away from the corruption of the Vietnamese authorities.
Why I think relocation to another area in my country is not a reasonable option
21. I have no contacts in other areas of Vietnam, except my auntie and I cannot live a normal life by hiding in her house. I cannot live in other areas because if I were to relocate the new authorities require me to register for temporary or permanent residence. I am young and alone, with no family. I believe it is unreasonable and extremely difficult to relocate in Vietnamese society.
The applicant had provided to the previous Tribunal a copy of the decision record of the delegate who refused the applicant’s application. The delegate summarised the applicant’s claims under the Refugees Convention as follows:
The following is a summary of the applicant's claims.
·The applicant was born [in] [Village 1], [District 2], Vietnam.
·The applicant has no religion.
·The applicant left Vietnam because he was targeted by the Vietnamese authorities who believed he was undertaking anti-government activities, creating disruption for the local officials.
·Just prior to November 2012, his grandmother started to negotiate compensation for her land with the local authorities who were trying to reclaim it. Her property was next door to a [State-owned] property used for State-sponsored [activities]. The local authorities decided to reclaim the property in order to incorporate it into the State-owned property.
·His grandmother had three meetings with the authorities but was unable to come to an agreement on the amount of compensation.
·In November 2012, the applicant was present when the Land Management representative arrived at their house together with the VC of the commune and the local police. The officials had come to forcible dispossess the applicant's family of their land. They arrived with a bulldozer ready to demolish the house and level the land. His grandmother began to cry and the applicant ran out of the house to try and stop the officials. He removed the survey sticks which they had just put in place ready for the bulldozer. He pushed them, trying to stop them from entering the house.
·The police arrested him and took him to the [Village 1] commune headquarters. He was detained until 2pm when two men ([Mr A] and an unknown person) entered the room and asked him why he had resisted them. The unknown person hit the applicant hard on the right side of the face causing enormous pain. He then hit him on the chest causing the applicant to collapse and lose consciousness. He was left alone and later fell asleep.
·The applicant remembers waking up at midnight, lying in pain in a very small room, tired and feeling exhausted emotionally. He was fearful knowing that they were accusing him of resisting public servants which is an offence in Vietnam. Because it was a very basic room with one lock (not a police station lock-up) he tried to get out. He was worried about being beaten again or harmed in some other way. He broke the door lock and left in the middle of the night. He travelled to his aunt's house in [District 1], which was about [number] hours (or [number] of kilometres) away by bus.
·When his aunt saw his swollen face she became distressed and treated him for his injuries. She allowed him to hide there.
·In December 2012, the applicant met a man through neighbours who introduced him to a people smuggler. The applicant's aunt paid for him to leave. The applicant departed Vietnam [in] April 2013 and eventually arriving in [City 1], Australia, [May] 2013.
·The applicant's grandmother approached the commune authorities for a negotiated payment for the land reclamation but was unable to get any compensation. She told him that because he had disrupted the work of public servants, committed an offence and escaped detention, then the government authorities refused to negotiate with her. She never signed an agreement to enforce the legal right to receive compensation at a specific amount. Because of this situation, his grandmother informed him on 20 October 2012 why she was unable to receive any money, she had no home; she was elderly and was forced to relocate with few possessions. She is now being looked after by his [aunt]. Also, his brother left school and neither the applicant nor his grandmother knows where he is.
·The applicant fears that the local government authorities who detained him will target him again because he escaped from their office and have committed an offence against public servants. He could still be detained and harmed by the authorities even though he has not been charged with an offence due to their political power.
·If he returns to Vietnam as a failed asylum seeker, he could be imprisoned because he left illegally. He has now learned that Article 91 Section 1 of the Criminal Code allows the government to charge and convict him of a criminal offence which could attract 3 to 12 years imprisonment.
·The authorities cannot protect him because the national and local authorities are linked. It is in the political and economic interest of the Commune level authority not to pay compensation to them and enforce their position by removing him from the area. He is aware the Australian government advertised his details accidentally on its website including his detention details. He considers the Vietnamese authorities will now be aware that he is seeking to live in a Western anti-communist society away from the corruption of the Vietnamese authorities.
·The applicant is young, alone, with no family and without contacts in other areas of Vietnam except his aunt. However, he cannot live a normal life by hiding in her house. He cannot live in other areas because he would be required to register for temporary or permanent residence.
·The applicant's post-interview submission dated 29 October 2014 submits that all Vietnamese asylum seekers in detention may have an increased profile as possessing anti-government opinions because of the visit by Vietnamese officials to the detention centres. As a consequence, the applicant will be subject to investigation and detention by the Vietnamese authorities and, as such, it is highly likely he will be subjected to torture and abuse.
The submission also submits:
·Section A18 is the Office of Controlling Exit and Entry, operating within the Ministry of Public Security, and is widely regarded as the security or secret police by the Vietnamese community.
·Human Rights Watch reported the People's Security Force has a distinctly political role focussing on, among other things, political crimes, activities which damage national security and protecting security as well as managing immigration and foreign residents.
·Personal information including name, place of birth and details of family members were provided by interviewees to the A18 officials.
·Country information reports of torture and other abuses in all stages of detention in Vietnam.
Assessment of claims by the delegate:
· The applicant claims not to have any religion but has not submitted any documents such as a National Identity Card (which records the holder's religion) to support this claim. However, as he has been consistent in this claim in his dealings with the Department and there is no evidence before me to the contrary, I accept that the applicant does not have a religion.
· Fear of harm because of a land dispute with the authorities and subsequent events
· In regards to his circumstances in Vietnam, I find the applicant's accounts of his circumstances in Vietnam which he has provided to the Department are inconsistent, lacking credibility and plausibility, and/or unconvincing. For example:
· At his Entry Interview, the applicant did not claim that he left Vietnam because he was involved in a land dispute with the Vietnamese authorities or that he escaped from police detention or that he was in hiding prior to his departure. Instead, the applicant claims he left Vietnam for economic reasons. I do not accept the applicant's submission that his age, mistrust of authority and concern for his family's safety are the reasons for the inconsistencies between his Entry Interview and his PV application given, among other things, he fled Vietnam to seek asylum in Australia and he had provided true personal details of family members including their names and residency history, at his Entry Interview which would enable investigation into matters such as his true circumstances and the identification of his family members.
· At the time of his arrival in Australia and Age Determination Assessment, the applicant claimed to be a minor however the age assessment made by two Departmental officers formed the opinion he had majority age. The applicant claims he does not have identity documents and has not submitted any documentation to support his claims relating to his identity including his age.
· The UK Home Office reported, "According to a 2006 Human Rights Watch (HRW) report, household registration documentation in Vietnam is essential for legally obtaining a job, collecting food rations, attending government schools, receiving health care, travelling, voting and contesting administrative abuses ... The report also indicates that children who do not have household registration documentation are more likely to be arrested or harassed by the police and may not be eligible to receive basic social services ..."
· This information indicates the applicant would have been included in a Family Household Registration booklet as he (and his brother) attended school. Also, the applicant would have possession of a National Identity Card (NIC), a mandatory requirement for all Vietnamese citizens over the age of 14 years, noting the applicant had worked for several years. Notably, at his Entry Interview, the applicant stated that he had a birth certificate. Consequently, I am not satisfied that the applicant does not have any official document issued by the Vietnamese authorities which would support his claims relating to his identity including his age. Also, I note that at his PV interview, the applicant stated that since his arrival in Australia, he had been in regular contact with both his grandmother [sic] which suggests he would have access to documents. However, the applicant has not submitted any material evidence to support his claims.
· The applicant claims that the Vietnamese authorities had tried to confiscate the applicant's family land and his grandmother had meetings with the local authorities regarding compensation. However, the applicant has not provided any material evidence such as the notice to reclaim the land, offer of compensation and photographs, to support his claims. Consequently, I find the applicant has not substantiated his claims relating to the reclamation of his family land claims.
· At his PV interview, the applicant stated that the total size of the family land was 200 sq m and the authorities wanted 120 sq m of the front of the family land. When asked about the size of his grandmother's land, the applicant appeared reluctant or unable to estimate the size of the land and required prompting despite having lived there for most of his life. He also appeared unsure of what piece of the land was required by the authorities. He stated that his grandmother had told him the land is over 200 metres deep; it is over 200 steps wide or about the same width as the depth; and it is larger than a soccer field but he could not say if it was larger than two soccer fields. Clearly, the size of the family land far exceeds 200 sq m. When this was put to the applicant, he stated that his grandmother is old and the land size estimate was made by the authorities. When it was put to the applicant if the authorities wanted 120 sq m of the land then, for example, if they took land 40 metres at the front then they would be required to take land 3 metres deep or if across the whole width then about 1 metre (to make 120 sq m). He stated that the authorities wanted of the land at the front beside the road and 20 ms deep indicating the authorities would have only required 6 m of land at the front of the land. Notably, when asked how far the police station was from his home, the applicant was able to answer over [number] m without hesitation, that is, he appeared to have familiarity with the concept of measurement and distance. Consequently, I find the applicant not only appeared evasive but also did not have a level of knowledge of the situation regarding the claimed confiscation of the land which would be reasonably expected of a person with his claimed involvement in the matter.
· The applicant claims that he was assaulted by the police at about 2 pm and knocked unconscious. He claims he awoke around midnight, that is, he was unconscious for about 10 hours. At his PV interview, the applicant stated that he was held at the village police station which is located within the village administration complex, and it contained cells but he was kept temporarily in a waiting room. He also stated that he regained consciousness about 9 or 10 pm and waited about two hours before escaping. I find the accounts are different of his situation at the police station are different. I also find it difficult to accept he would have been unconscious and left unattended or without apparent medical supervision for such a long period of time given the possible seriousness of his injuries and unconsciousness.
· In his Statement of Claims, the applicant claims the room had one door lock which he broke to escape. At his PV interview, the applicant stated that he was able to escape by reaching through a hole in the wall near the door and shaking the metal wiring securing the door until it broke. I find it difficult to accept that the authorities would place the applicant in a room in which it would have a hole in the wall which would enable him to break the wiring and escape and for him to do so without making noise and attracting the attention of security staff.
· At his PV interview, the applicant stated that after his escape he went to hide at his aunt's home in [District 1], about [number] kms away, for about 5 months, that is, from November 2012 until April 2013. However, according to his Residential details in his PV application, he makes no reference to residing in [District 1] but states he resided in [District 2] from birth to April 2013. Notably, this residential history is consistent with the details he provided at his Entry Interview. Furthermore, both his PV application and Entry Interview indicate he worked with the same employer from 2009 until 2013. Consistently, I find the applicant's account of his escape is inconsistent with his residency and work histories.
· At his PV interview, the applicant stated that the authorities had questioned his grandmother and aunt who lived in Binh Thanh about his whereabouts but not his other aunt who lived in [District 1] because it was too far. When asked if the Vietnamese authorities had issued a summons to him, the applicant responded that he did not know. The applicant has not submitted any documents such as a summons to support his claim he is being pursued by the Vietnamese authorities. Nor do I find it credible or plausible that the applicant would not have been advised by his grandmother or aunts if he had been issued with a summons. As such, I do accept that the Vietnamese authorities have issued a summons for the applicant to present himself to them. Furthermore, I do not find it credible that the Vietnamese authorities would not have issued a summons to the applicant if he had escaped from the police while being detained and were continuing to try and locate him.
· For the reasons given above, I find the applicant's claims relating to his involvement in a land confiscation dispute and escape from police custody of the police lacks credibility. Consequently, in the absence of any credible material evidence to substantiate these claims, I do not accept that the applicant was involved in a dispute with the Vietnamese authorities over the confiscation of family land, or that he escaped from the authorities, or that the Vietnamese authorities are trying to locate him.
Departure from Vietnam
§The applicant claims to have illegally departed from Vietnam by boat. There is no evidence before me to contradict this claim. As such, for the purpose of this assessment, I accept that the applicant illegally departed from Vietnam by boat when he commenced his journey to Australia.
Visit by Vietnamese officials while in immigration detention
§The applicant claims all Vietnamese in immigration detention will have an increased profile because of the visit by Vietnamese officials to immigration detention centres around August 2013. Departmental records indicate Vietnamese immigration officials visited immigration detention centres around August 2013 while the applicant was in immigration detention. I also accept that there were protests and media coverage relating to these visits. Consequently, I accept that Vietnamese in immigration detention at the time including the applicant, may have an increased profile.
Privacy/Data breach
§The applicant claims his personal details were released on the Department's website through a report which enabled access to some personal information of persons in immigration detention. Departmental records indicate this privacy/data breach occurred and the applicant was in immigration detention on 31 January 2014. Consequently, I accept that a report was released on the Department's website which may have enabled access to some of the applicant's personal details.
Summary of findings
§In summary, for the reasons given above, I accept the following:
· The applicant has no religion.
· The applicant left Vietnam illegally.
· The applicant was in immigration detention when Vietnamese officials visited immigration detention centres around August 2013.
· The applicant's personal information may have been accessed through a link posted on the Department's website in early 2014.
§Also for the reasons given above, I do not accept the following claims:
· The applicant was involved in a dispute with Vietnamese authorities regarding the confiscation of family land, his detention by the police and subsequent escape, and the Vietnamese authorities' enquiries into his whereabouts.
Evidence at the hearing of the previous Tribunal
The applicant’s previous representative made a number of written submissions to the Tribunal during the course of the review.
In a submission dated 4 March 2016 that was handed to the Tribunal at the commencement of the hearing, the previous representative said:
19. The reason for his decision to change his identity was also the significant fear he had against the authorities. He believed that by giving false identity he would be safer in Australia. He did not want to let the Vietnamese authorities know that he escaped to Australia. However, his details was on Immigration Department website for which he had significant concerns. Please refer to the para 20 of the statement.
20. His fears about Vietnamese authorities monitoring him was real. He was interrogated by Vietnamese A18 authorities, while in detention police about his reason for coming to Australia. He was fearful of his own life as well as his family in Vietnam. He feared that by revealing his true identity he will become a target.
21. However after the age assessment he realised that it was important to reveal his true identity to assess his claim for asylum. He then decided to reveal his true identity. He provided correct details of his identity in his protection visa application and at the interview.
At the hearing the applicant stated that he had never provided any false identity to the Department. He said that when he was first interviewed his name was incorrectly spelled on the form, and that he had told the Department whenever he was interviewed after that the correct spelling of his name. He did not understand why his representative had made these submissions as he had at all times stated his true identity to the Department. He does not have identity papers as they were all lost when his grandmother’s house was demolished and he has not obtained new papers.
The representative also gave the Tribunal a copy of a psychological assessment report regarding the applicant which concluded that he suffers from post-traumatic stress disorder (PTSD). Based on what he was told by the applicant, the psychologist concludes that the applicant ‘has been significantly stressed due to his refugee visa problems’. The Tribunal asked the representative if she had any submissions to make about the relevance of this report and she replied that it was ‘not really relevant’ to the application.
The applicant’s evidence at the hearing was largely consistent with that set out in his written claims and in his interview with the Department. He said that he and his [brother] had lived with their grandmother in [Village 1] until their land was confiscated by the local authorities in November 2012, and he fled after escaping from the police to his aunt’s home about [number]km away. He said that the authorities had offered to negotiate with his grandmother about the confiscation of her land, but said that she refused because their offer of compensation was too low. They then took the land and his grandmother received nothing.
The applicant told the Tribunal about being taken to the police station where he was assaulted in similar terms to the claims he had made previously. He said that he escaped in the night, and was able to catch a bus on the highway because he still had his money with him as the police had not confiscated it. He said that when he arrived at his aunt’s place he stayed indoors and did nothing for the next six months as he was afraid to go outside because he had no identity papers.
The Tribunal asked the applicant how his brother could work in [location] without papers, and he said that his brother can get new papers because he wasn’t involved in action against the officials who tried to take the family’s home.
The applicant said that he is afraid that if he returns to Vietnam he would be arrested and assaulted and then jailed for years for resisting officials and then escaping from custody. He also said that he was afraid of the same consequences because of the data breach of the Department’s asylum applicant database and the visit to the detention centre by Vietnamese government agents who he claimed took down information about the detainees. He said that while he was not interviewed by the Vietnamese agents, he believes that they had access to the information about all the Vietnamese detainees. He said that he knows that many of the Vietnamese detainees who were deported after the visit of these officials were treated very badly when they returned.
After a break to speak to his representative the applicant told the Tribunal that he had been confused when the delegate asked about the size of his grandmother’s land because the delegate asked him to compare it to the size of a football field, and in his experience in Vietnam football fields were different sizes.
At the second hearing the applicant confirmed that he had stayed with his aunt in [District 1] for more than 5 months before leaving Vietnam and that he stayed in the house doing nothing the whole time. He said that if he returned to Vietnam he would be unable to go to his home village of [Village 1] because the family’s land has been confiscated and he no longer has any family or home in [Village 1]. He said that if he returned to the area he would be arrested by the local police.
The applicant also told the Tribunal that he was concerned about the safety of his aunt in whose home he had stayed before coming to Australia, but said that he is not aware that she has had any contact with the authorities since his departure. He said that he is concerned that he cannot obtain a new household registration in Vietnam because he no longer has a home address.
The representative submitted that as the applicant’s details were made public by the Immigration Department in 2014 and Vietnamese officials from the Ministry of Public Security visited the detention centre in Australia where he was held, he will be jailed and mistreated as a failed asylum seeker and a person who departed Vietnam illegally.
Country information discussed at the hearing of the previous Tribunal
The current DFAT report addresses many of the issues raised by the applicant’s claims in this case. It states:
Land disputes
2.16 Land use is a contentious issue in Vietnam. All land is formally owned by the state, which issues land use rights to citizens but retains significant power over land use, including through compulsory acquisition powers. The use of land is often subject to dispute due to poorly defined property rights and the potential for corruption. These disputes can lead to protests and, occasionally, violence. For example, in April 2015 there was a dispute between local residents and construction workers over the compensation to be paid to the residents for the use of the land at a construction site in Ha Tinh Province. Violence occurred between hundreds of civilians and police, and dozens of people were hospitalised with injuries. In February 2014, a group of farmers protesting the acquisition of farmland was reportedly threatened and then fired upon by a group of men allegedly hired by the property developer. …
Treatment of Returnees
5.21 ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence under Article 91 of the Penal Code 1999. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. People returned to Vietnam are usually done so on the understanding that they will not face charges as a result of their having made asylum applications—for example, under the tripartite agreement between Vietnam, Cambodia and the UNHCR regarding the return of Montagnards to Vietnam.
5.22 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND 2 million and VND 10 million (approximately AUD$120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND 20 million and VND 50 million (AUD$1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
5.23 Notwithstanding this, DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the government as victims of criminal activity (people smuggling) rather than as criminals facing the penalties allowed in the law for departing Vietnam illegally. While some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in April and July 2015, as part of investigations into people smuggling operations. On 22 April, the Vietnamese Government invited the UNHCR (in a message conveyed by the Australian Government) to interview individuals who had been on board the vessel returned in April, including those who had been detained. At the time of release of this report, UNHCR had not sought to interview any of those individuals.
Returning Political Activists
5.24 Activists returning from overseas are likely to attract the attention of authorities on arrival. Activists returning voluntarily, particularly those from western countries, may be questioned on arrival by police. It is highly likely that surveillance activities targeting returned activists will resume on arrival. There are credible reports of the government maintaining lists of people who have been banned from returning to Vietnam. There are also reports of activists being told that once they return to Vietnam they will not be permitted to travel overseas again.
5.25 Activists returned involuntarily are held for a short period subject to an interview by Vietnamese immigration officials and police at the airport. On release, returned activists will be required to report to police for an indeterminate period of time. In some cases, returned activists will be encouraged to relocate away from areas frequented by former associates to diminish the chances of ‘reoffending’. Following their relocation or resettlement, police surveillance is likely to continue for some time, and conditions are likely to be set regarding activists’ ability to associate with other persons of interest to the police.
Conditions for Returnees
5.28 There are no formal protections under Vietnamese law preventing the victims of people smuggling from being prosecuted. However, DFAT has no information to suggest that people known or believed to have sought asylum in other countries receive different treatment from the Government of Vietnam for having sought asylum. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return (as described under ‘Returning political activists’ above). Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are generally viewed by the government as victims of criminal activity rather than as criminals themselves. We understand that in the past some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to the investigation of people smuggling operations.
5.29 DFAT assesses that, in general, those who have been detained upon return have been detained primarily due to their political views, held or imputed, rather than the fact that they have sought asylum. Vietnamese authorities in general have honoured their obligations under a tripartite memorandum of understanding signed with Cambodia and the UNHCR in 2005 to facilitate the return from Cambodia of ethnic Vietnamese who did not qualify for third-country resettlement. While this agreement was initially for a six month period, Vietnamese authorities have to date largely honoured the spirit of the agreement.
Documentation
Ho Khau (household registration)
5.30 The Ho Khau household registration system is used as the primary source of identification for obtaining other official documents, including licenses and passports. Officials use the registration system to determine the levels of services provided to villages and provinces. In this way, the system links a person’s right to access government healthcare, education and other services to their place of residence. Ho Khau registration is also essential for obtaining employment with the government or in state owned enterprises, or to collect food rations from the state.
5.31 Ho Khau registration is initially obtained through the registration of a person’s birth with village or provincial administrators. A person can apply to change their place of residence if they have resided away from their place of residence at a fixed address for more than six months. Although health care facilities can be accessed anywhere in Vietnam in emergency cases, facilities may turn away non-life-threatening cases where the person is not properly registered. Access to schools is determined by Ho Khau registration and administration fees may apply to children not registered in an area zoned for a particular school. For members of minority groups, Ho Khau registration is essential to access development-related entitlements in rural and regional centres. This may include additional language training or employment related training.
5.32 The information contained in the Ho Khau registration system is used by the government to identify and locate suspects, and their family members. DFAT has received unconfirmed reports of at least one activist having his Ho Khau papers destroyed by police; this makes daily life very challenging as a lack of identity documents is a significant administrative barrier.
The Tribunal has also had regard to a recent report on land seizures in Vietnam[1]:
[1] Andrew Wells‐Dang, Pham Quang Tu and Adam Burke, Agrarian Change and Land Tenure in Vietnam through a Political Economy Lens, Chiang Mai University, May 2015, available at accessed 16 March 2016
According to the 2003 Land Law, the purposes for which land can be confiscated include not only national defence or public infrastructure, such as roads (normal government powers in any state), but also economic development, including for private investors. The resulting combination of political and business interests has been identified as a key limitation in transparency and accountability in Vietnam’s political economy (Oxfam and OPM 2012). State agencies are also given considerable discretion to implement the law, allowing some actors to interpret policy in a way that serves their own factional interests (lợi ích nhóm). It is no coincidence that the two areas of land policy most subject to corruption have been identified as the issuance of LURCs and the resale of land after compulsory requisition by the State (Embassy of Denmark et al 2011). In another survey on local-level corruption, 86% of respondents agreed that corrupt practices are widespread in their provinces (CECODES 2008, p. 26).
Human Rights Watch (HRW) has raised the issue of Vietnamese asylum seekers returning from Australia to Vietnam in a number of reports. The ABC referred to one such report in July 2014[2]:
[2] ABC News, Concerns asylum seekers in Australia detention pressured to return home voluntarily, Kesha West, 3 July 2014, available at:
Australia's policy 'returns oriented': HRW
Elaine Pearson is the director of Human Rights Watch in Australia.
She is concerned about the increasing pressure being put on detainees to return home voluntarily.
"I think one of the concerns with Australia's policy overall, and UNHCR has mentioned this, is that it tends to be quite returns oriented," she said.
"So it tends to be focused on making the conditions so harsh in detention, whether it's offshore or also in terms of onshore detention, that people withdraw their asylum claims."
Human rights groups say Australia is obliged not to send an individual back to face persecution or torture, something refugee advocates say Australia is failing to do.
One of the key concerns of refugee advocates is what happens to these people once they arrive back home.
'John' says he and his fellow detainees have managed to contact some of those who have returned and heard disturbing stories.
"They said that there were people who got jailed, beaten up and there were many who were detained until their family paid a fine to get them released," he said.
"And some people who left Australia with some amount money, when they got to Vietnam immigration they were robbed by the officers and have nothing left."
The ABC has tried unsuccessfully to locate a group of Vietnamese asylum seekers forcibly deported late last year.
"One of them I talked with his mother three weeks after he returned and at that time he was still in a police detention," refugee advocate Trung Doan said.
Mr Trung says he hasn't been able to get in contact with the family since then.
The ABC asked the Vietnamese government's representative in Australia to respond to these allegations but the ambassador was unavailable.
HRW recently reported[3]:
[3] Human Rights Watch, Australia – Vietnam Human Rights Dialogue, Human Rights Watch Submission, 3 August 2015, available at: accessed 11 May 2016
4. Vietnamese Asylum Seeker Boat Returns
Australia has recently returned two boats carrying Vietnamese asylum seekers back to Vietnam. On March 20, 2015, a boat containing 46 Vietnamese men, women and children was intercepted by the Australian government and held at sea. On April 18, 2015, Australian officials returned the passengers to Vietnam.
On May 25, 2015, Australian border officials testified before a Senate Estimates Committee that the government had been provided written assurance that the asylum seekers would face "no retribution for their illegal departure from Vietnam.” On its face, the assurance from Vietnam is limited to not prosecuting people for their "illegal departure" but no assurance is given against future persecution or protection from acts that may have prompted them to flee in the first place.
Australia did undertake what it terms “enhanced screening” measures to interview the 46. These are cursory interviews at sea to pre-screen asylum seekers for possible claims for asylum and fail to meet international standards. International refugee law provides that asylum seekers must have an adequate opportunity to make a claim for protection, and the law of the sea requires swift embarkation to a place of safety following a rescue.
After being questioned whether they had determined that Vietnam had lived up to its assurances, Australian officials admitted that they do not track people once they have been returned and the assurance was based solely on trust.
More recently, on July 20, 2015, Australian officials intercepted a boat carrying 46 Vietnamese asylum seekers that reportedly included two babies. On July 25, 2015, the Vietnamese were transported back to Vietnam by plane. Upon arrival, three of the asylum seekers were reported to have been detained by Vietnamese authorities.
A report in The Australian[4] regarding the incident in July 2015 referred to by HRW stated:
[4] Taylor, Paige, Failed Vietnam boat refugees face jail, The Australian, 28 March 2016, available at: accessed 11 May 2016
The Vietnamese asylum-seekers accused of buying their own boat for a daring 20-day journey that ended when they reached a West Australian oil rig in July face up to 15 years in jail for their role in the ill-fated bid for a new life in Australia.
The Australian Border Force returned 46 adults and children to Vietnam soon after their blue boat sailed close to the West Australian coast on July 20, just as the border patrol had done three months earlier after intercepting a vessel carrying 46 other Vietnamese asylum-seekers.
Passengers from both those failed asylum bids allege that, during the hand back, Vietnamese officials assured Australian officials that they would not be treated harshly.
Almost four months after the Australian Border Force returned the first group of 46 to Vietnam, one of the men from that journey was arrested.
Former Vietnamese Community in Australia president Trung Doan said five people from both trips were in jail in Vietnam awaiting trial for their alleged roles as organisers in either trip.
He said passengers thought to have made no contribution had not been targeted by Vietnamese authorities.
Mr Doan said Vietnam’s definition of a people-smuggler was wrong and “it is regrettable that Australia is helping Vietnam to apply this oppressive law”.
Among those charged is Tran Thi Lua, 36, who fled Vietnam with her three children on a boat on July 1 last year. She is on bail and faces a minimum of two years jail if convicted.
“The total cost of the July trip is alleged to have been $26,000, including $18,000 for the boat; it is clear these were desperate people pooling their resources to buy food and oil and a boat that would make the distance,” Mr Doan said.
“Some of the Vietnamese people who contributed are being prosecuted over a lesser amount of money than what the passengers from Indonesia paid for their fares to Christmas Island when the asylum boats were arriving all the time.
“Those Christmas Island passengers were not charged or jailed, they were given visas.”
The Bureau of the Public Prosecutor in Vietnam’s Binh Thuan province has not asserted that Ms Tran or anyone else profited from the trip, however, court documents obtained by The Australian show that she is considered the “mastermind” because she collected the money and invited people to make the sea journey.
In a statement to Mr Doan released to The Australian, Ms Tran said: “They promised in front of Australian officials to be gentle to us, then they interrogate us as soon as the Australian officials turn their backs and now they jail us.”
The Australian Broadcasting Commission (ABC) reported[5] on 22 April 2016 that four asylum seekers accused of organising the boat journey to Australia last year were sentenced to between two and three years' jail. The report cites Trung Doan from Vietnamese group VOICE as the source of the story, and quotes him as saying ‘Under Vietnam's criminal code, returned asylum seekers face between two and 15 years behind bars for seeking asylum or organising the trip, even if there was no financial gain’.
[5] Hawley, Samantha, Four asylum seekers behind boat journey to Australia sentenced to jail, Vietnamese group says, 23 April 2016, available at accessed 17 May 2016
Political Opinion
The United Kingdom Home Office, in its Country Information and Guidance report on Vietnam issued in December 2014[6], provides the following summary of its findings.
[6] United Kingdom Home Office, Country Information and Guidance Vietnam: Opposition to the Government, December 2014, accessed 17 May 2016
1.3.2 Vietnam actively suppresses political dissent. Vietnam bans all political parties, labour unions, and human rights organisations independent of the government or Communist Party of Vietnam (CPV). There are severe government restrictions on citizens’ political rights, particularly their right to change their government. The authorities require official approval for public gatherings and refuse to grant permission for meetings, marches, or protests they deem politically or otherwise unacceptable.
1.3.3 The authorities perceived political activists without charge indefinitely under vague “national security” provisions, putting human rights defenders and political activists, including their family members, at risk from arbitrary arrest and detention and being detained under these provisions for criticising the government at public protests or via online media such as blogs. Detainees are known to be subject to lengthy detention and ill-treatment by the authorities.
1.3.4 Bloggers, political and religious activists, land and labour rights activists, human rights and social justice advocates were subject to arbitrary detainment, including harsh prison conditions and other ill-treatment solely for peacefully exercising their right to freedom of expression.
1.3.5 Where a person is perceived to have taken part in opposition political activities or will otherwise be perceived as being involved in opposition politics - including human rights defenders, journalists and internet based activists - and as a result of that would come to the adverse attention of the authorities, they would face a real risk of persecution. This risk may also extend to members of their families.
The report concludes:
· Vietnam actively suppresses political dissent and the authorities arbitrary arrest and detain people, including family members, involved with opposition political parties or who express views which they believe pose a threat to the state.
· This includes including bloggers, political and religious activists, land and labour rights activists, human rights and social justice advocates.
· Persons who have come to the attention of the Vietnamese authorities for actual or perceived involvement in political opposition to the regime are likely to face ill treatment amounting to persecution in Vietnam. In such circumstances, a grant of asylum is likely to be appropriate.
Loss of household registration
Country information before the Tribunal confirms that the Vietnamese authorities monitor the place of residence and movements of its citizens, and that a person’s name will be removed from a household register after a period of absence from Vietnam. Changes in the law in 2007 appear to have overcome some previous difficulties with the residence laws. In a summary of some of the principal aspects of the changes in the law[7], the right to freedom of residence is highlighted:
[7] Saigon GP Daily, Some Key Points on Law of Residence, 13 June 2007. This publication is the English edition of the official organ of the Peoples Committee of the Communist Party of Vietnam, Ho Chi Minh City. The article is available at accessed 13 May 2016
The Law of Residence asserts that citizens are entitled to the right of freedom of residence. Accordingly, citizens have the right to choose and decide where to live or temporarily live in conformity with the law. Non-local residents who are eligible to permanently or temporarily reside in a city can request that local authorities issue a ho khau (household register) or a certificate of temporary residence to them.
Citizens have the right to request that local authorities issue or re-issue a ho khau, a certificate of temporary residence or other residential papers to them or provide them with necessary information relating to the implementation of rights of freedom of residence.
Citizens can also request that local authorities act appropriately to protect their rights of freedom of residence. Citizens have the right to lodge a complaint and take legal action against any act that violates the Law on Residence.
The Law on Residence strictly forbids any act that prevents citizens from realizing their rights of freedom of residence, abuses regulations of ho khau to restrict citizens’ legitimate interests, or cause difficulties and asks them for bribes.
Local authorities are strictly forbidden from setting unreasonable time limits, invent unnecessary formalities, or intentionally make changes to records or papers related to a citizens’ residence. Local authorities will be charged if they refuse to issue papers regarding residences of citizens or illegally collect related fees.
Citizens’ freedom of residence is restricted in the following cases:
Citizens will be subject to restrictions of rights of freedom of residence in some cases. Among them are people banned by a court from leaving their current residential places, people sentenced to imprisonment but whose arrest warrants have not yet been issued against them, people who are granted with suspended sentences and people who are being kept under surveillance.On 24 February 2009 the UK Home Office reported[8]:
[8] United Kingdom: Home Office, Country of Origin Information Report - Vietnam, 19 May 2010, available at: accessed 19 May 2016, quoting a report from the Immigration and Refugee Board of Canada, VNM103087.E, 24 February 2009, Vietnam: Circumstances under which an individual's name may be removed from a household registration; whether an individual's household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment
25.04In 18 February 2009 correspondence, an official at the Consulate General of Canada in Ho Chi Minh City, Vietnam stated that individual's names are removed from the household registration (ho khau) under the following circumstances:
1) ... [B]eing declared disappeared or dead by the Court;
2) Being recruited by the Army, Police and living in barracks;
3) Having immigrated abroad;
4) Being registered at a new residence; in this case, the local authority that processes the new permanent residence of the citizen has the responsibility of informing the delegated authority for issuing the certificate of household move to remove the permanent residence of that individual at the previous residence.
The Official also indicated that Persons who have been absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence as stipulated.
With regard to those persons who have registered their permanent residence but who in fact do not live in their permanent residence address without any plausible reasons, or cannot live there, the household management agency must cross out their names in the household registration book...
The Official stated that household registration procedures and paperwork may vary slightly from province to province… The information provided by the Official is based on government Decree/Circular, government websites and local knowledge... When asked about whether individuals are removed from their household registration as a form of punishment, an international human rights lawyer specializing in Southeast Asia stated the following: ‘I know of no situation where a person is removed from their own [household] Registry, but cannot state that it is not done in cases where some doubts exist as to a family relationship’... No further information relating to the removal of individuals from their household registration as a form of punishment could be found among the sources consulted by the Research Directorate.
Information before the Tribunal is that on 5 August 2013 Vietnam’s Ministry of Public Security (MPS) provided formal advice to DFAT on the circumstances in which a returnee from abroad may reapply for household registration in Vietnam:
2. Vietnam’s Residency Law and accompanying regulations ensure Vietnamese who’ve been living overseas can register for permanent residency and receive household registration papers. Nothing in the Residency Law makes registration more difficult for individuals who no longer have relatives in Vietnam or who have acquired a criminal record overseas.
3. To reapply for permanent residency, returning Vietnamese must provide the following:
· a declaration of any changes to household registration details and members
· a declaration of current household members
· documentary evidence of a legal place of residence (unless the person is accepted for registration with an existing household)
· a valid foreign passport or residence permit
· a repatriation document issued by a Vietnamese representative office in the country the applicant is leaving
· a Vietnamese passport with an entry permit stamp from Vietnamese border authorities (if the person still holds a valid Vietnamese passport)
4. To register for residence in a centrally-administered city, the person must submit an application for residency to the local police and allow 15 days for processing.
5. MPS hasn’t told Post whether household registration would be possible for a person deprived of Vietnamese citizenship […] Post’s understanding of the Vietnamese version of Article 23 [of the Nationality Law] (which we consider reliable) is that a person deprived of Vietnamese citizenship must wait at least five years before reapplying. Post asked the Justice Ministry for formal advice on Article 23 but, despite prompting, did not receive a response.
6. Although a person may be deprived of citizenship, this requires a formal act by the Vietnamese Government.
Findings and Reasons of the previous Tribunal
The applicant’s claims for protection have been consistent throughout the processing of his application. The Tribunal found the applicant to be a credible witness in that the applicant genuinely believes his claims and has been consistent in giving his evidence. The Tribunal finds that the applicant has a subjective fear of being harmed in Vietnam; however for the following reasons the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in Vietnam.
The applicant’s main claim is that he fears persecution in Vietnam because of his political opinions and/or political opinions that would be imputed to him because of his opposition to the seizure of his grandmother’s home by the local authorities in [Village 1]. He also claims that he would face serious harm should he return because he does not have any household registration because of the circumstances in which his grandmother’s house was demolished by those local authorities. Further, he claims to fear serious harm because his identity and circumstances as an asylum seeker in Australia have been made known to the Vietnamese authorities by two separate actions of the Department, in allowing Vietnamese officials into the detention centre where he was held and in the ‘data breach’ incident that occurred in 2014.
The Tribunal notes that although the delegate discusses whether a summons had been issued for the applicant by the Vietnamese authorities, the applicant has made no claim that this occurred.
Land seizure and loss of household registration
Given that the applicant’s claims in relation to his resistance to the seizure of his grandmother’s land by the local authorities in [Village 1] in 2012 have been broadly consistent, the Tribunal is prepared to accept these claims as true. The Tribunal has some doubts as to his claim to have been beaten and held in a detention cell from which he escaped. Notwithstanding the analysis of these events in the delegate’s decision record, however, and bearing in mind the cautionary issues referred to by the UNHCR Roundtable and by Kirby J in SGLB, for the purposes of this decision, the Tribunal is prepared to accept that he was briefly detained, was the victim of a minor assault, and escaped.
The Tribunal is satisfied, however, on the basis of the applicant’s own evidence, that he was able to stay at his aunt’s house in Vietnam for some six months after this incident. He has made no claim that his grandmother or brother has suffered any consequences as a result of the incident, as he says that he was the only person who opposed the seizure of the house. He no longer has any relatives living in [Village 1], and did not live there for the six months prior to his departure.
In these circumstances, the Tribunal does not consider that the applicant has any reason to return to [Village 1], and is satisfied that the incidents in which he claims to have been involved were not of such a nature that the authorities in that area would seek to pursue him elsewhere in Vietnam.
When asked by the Tribunal where he would go if he returned to Vietnam, the applicant said that he could not live at [Village 1] as he had no home there anymore and no ‘ho khau’ (household registration) entitling him to live there. The Tribunal is satisfied on the basis of the available country information, particularly from the UK Home Office, the Canadian IRB report and advice to DFAT from the Vietnamese government referred to above, that if the applicant is returned to Vietnam he will be provided with a new household registration by the authorities.
In making these findings the Tribunal is satisfied that the applicant’s activities before leaving Vietnam are not such as to give rise to a real chance that the Vietnamese authorities would harm him either because of his actual or perceived political opinions. The available country information certainly indicates that some political activists experience problems on returning to Vietnam, however the Tribunal is satisfied that the applicant does not have the kind of profile that places him in the category of people who face a real chance of harm at the hands of the authorities on their return.
Harm arising from being a returning asylum seeker
The Tribunal accepts that the Vietnamese authorities are almost certain to be aware upon his return that the applicant is a person who sought protection in Australia. However, the information in the DFAT report (see paragraphs 5.23 and 5.28) that the Vietnamese authorities target the organisers of escape attempts for punishment rather than all asylum seekers is supported by media reports referred to above about the treatment of Vietnamese citizens returned by Australia in 2015.
The United States Department of State and the United Kingdom Home Office both also report that failed asylum seekers who departed Vietnam illegally are seen as victims of people smugglers and victims of crime. Both confirm the information provided by DFAT regarding the identification checking procedures, brief period of detention while this occurs, and the fines imposed for illegal departure. Both report that known political dissidents are detained further, but not failed asylum seekers and others who departed illegally.[9]
On the basis of this information, the Tribunal is satisfied that the applicant does not face a real chance of harm as a failed asylum seeker should he return to Vietnam.
Harm arising from release of data by the Department
The Tribunal accepts that the applicant’s name, date of birth, address and other identifying information was incorrectly released by the Department as a part of the ‘data breach’ that occurred in January 2014. The applicant claims that he can be identified by the Vietnamese government as a result of this breach and his safety is therefore at risk.
The Tribunal notes that the information released related to basic identity information and contained no details as to whether those persons had lodged protection claims or the details of such claims. Information before the Tribunal also indicates that this information may not have been downloaded in Vietnam[10], although the available information states that some of the material was downloaded by ‘anonymised’ users. The Tribunal also notes that even if the material was not downloaded in Vietnam, it cannot be assumed that the information did not find its way to the Vietnamese government.
However, the Tribunal is satisfied that there is no evidence that the data leak included any information about protection claims of the applicant or any other person.
Having regard to all the circumstances in this case, and to the findings made above in relation to the applicant’s status as a person who sought asylum in Australia, the Tribunal finds that the release of this data does not contribute to, or of itself give rise to, a real chance of serious harm if the applicant returns to Vietnam now or in the reasonably foreseeable future.
The Tribunal is satisfied that even if the information did, or does, fall into the hands of Vietnamese government authorities, the applicant would not face a real chance of serious harm, as it considers that the Vietnamese government has no adverse interest in him for the reasons set out above.
[9] US Department of State (USDOS), Country Reports on Human Rights Practices 2013: Vietnam, 27 February 2014; UK Home Office, Country Information and Guidance, Vietnam: Opposition to the Government, December 2014
[10] theguardian.com, 19 June 2014 available at: accessed 13 May 2016
Visit by Vietnamese officials to [the] Immigration Detention Centre
Based on the evidence before it, the Tribunal accepts that the applicant was present at [the] immigration detention centre when Vietnamese authorities visited at the invitation of the Department. The applicant’s evidence is that he was not interviewed, although he expressed concern that his details may have been provided to the visiting Vietnamese officials.
The Tribunal accepts that the visit by the Vietnamese authorities to [the detention centre] caused a great deal of distress and concern to the Vietnamese asylum seekers present in the centre at the time. Media reports indicate that a number of inmates escaped as a result of the visit. The applicant confirmed in his evidence, however, that he was not interviewed during the visit, and his claim that his details would have been provided to the officials is not supported by any evidence.
In the absence of any evidence that information about him was communicated to the visiting Vietnamese authorities, the Tribunal is not satisfied that his claim to fear persecution as a result of the visit by officials to [the detention centre] is credible.
Assessment of claims by the previous Tribunal
For the reasons set out above, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Vietnamese authorities because of his resistance to the seizure of his grandmother’s land, his escape from custody, his lack of papers or his attempts to seek asylum in Australia, whether or not the Vietnamese authorities are aware that he sought protection in Australia. The Tribunal is also satisfied that if these claims are considered cumulatively, it is still the case that the applicant is not a person who would be regarded as having a profile as a political activist that would give rise to a real chance that he would face harm at the hands of the Vietnamese authorities.
The Tribunal is satisfied that the applicant does not have the profile of a political activist, or a person who has acted against the Vietnamese government. The Tribunal accepts that on return to Vietnam the applicant is likely to be prosecuted for having committed an offence against Vietnam’s entry and exit laws by departing the country illegally and travelling by boat to Australia. After assessing the evidence, however, the Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his illegal departure and having sought protection in Australia. The Tribunal has considered these claims in combination with the fact that the applicant has been inadvertently identified in the Immigration Department’s data breach and that he was present when the Vietnamese officials visited [the detention centre]. The Tribunal is satisfied that the applicant does not face a real chance of serious harm on cumulative grounds.
Assessment of complementary protection claim by the previous Tribunal
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). In so doing the Tribunal considered whether there are 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 that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
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 Refugees Convention definition.[11]
Given the Tribunal’s findings above, it is satisfied that the applicant does not face a real chance of serious harm in Vietnam for reasons of his claimed conflict with the local authorities over the seizure of his grandmother’s house and land, the loss of his household registration, the data breach, or the visit by Vietnamese officials to [the] immigration detention. Nor does it consider the applicant faces a real risk of significant harm for reasons of his mode of departure from Vietnam, or for returning as a failed asylum seeker.
Having regard to all of the evidence, the Tribunal does not consider, based on all of the applicant’s claims, that there is a real risk that anyone would inflict cruel or inhuman treatment or punishment, or degrading treatment or punishment on the applicant.
For these reasons, the Tribunal finds there are not 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 that he will suffer significant harm.
[11] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Hearing by this Tribunal (continued)
The Tribunal explained to the Representative that it would not simply accept the findings of fact of the Delegate and the previous Tribunal. It explained that this was a hearing de novo, and that it would take a fresh look at the application.
The Tribunal explained to the Representative and to the applicant that it wished to ask the applicant a number of questions in order for it to be able to make its own decisions as to the facts.
The Tribunal asked the applicant why he had left Vietnam, noting that in the applicant’s entry interview, the applicant had not referred to any land dispute with the Vietnamese authorities or that he had escaped any detention with the Police. In fact, the applicant had told the Department Officials during his entry interview that he had left Vietnam for economic reasons.
The applicant replied that his mind was still in a confused state when he arrived in Australia. He said he was very worried about whether Australia would invite the Vietnamese authorities to talk to them whilst they were in detention.
The Tribunal stated that it was surprised by the applicant’s response as he had allegedly come to Australia to be protected and that when interviewed by the very people from whom he sought protection, it would have been logical for him to have explained fully why he needed protection, or why he wanted them to help him. The applicant replied that he was not sure if the Vietnamese Police would be called. He said he was still very scared of the Vietnamese Police.
The Tribunal asked the applicant about the land dispute. The applicant became very animated and commenced to draw a plan of the environs of his grandmother’s property. He noted on the plan the location of neighbouring properties and the location of his grandmother’s house on her land. He said the land was about 200m2.
The Tribunal interrupted the applicant, noting that he had previously told the Delegate that the land was the size of a football field. The Representative responded by suggesting that it was an unfair question as the applicant could not know what the size of a football field was as he was a peasant.
The Tribunal was satisfied that the applicant’s evidence in relation to the land dispute was consistent with the evidence he had given the previous Tribunal.
The Tribunal asked the applicant to provide to it a detailed account of the events of the day that the land was reclaimed. Again, the applicant became quite animated and discussed in detail what happened when the Police arrived at his grandmother’s house and what the bulldozer did on the property. He also provided a detailed account of his arrest and ultimate holding at the Police station. He again provided a plan of where the holding cell was in relation to the main buildings of the Police station. In doing so, he was at pains to point out that as he was not in the main building, he was not under constant surveillance. This explanation addressed the Tribunal’s concern, and the concern of the previous Tribunal, as to how he had managed to escape as the means of escape that he had adopted was noisy and should have resulted in attention being drawn to him.
The applicant then provided an account of his escape, and what he did immediately after the escape, how he walked for a while away from the prison, then hopped on a coach headed in the direction of his Aunt’s place. He provided an account of his arrival at his Aunt’s place, what his Aunt did to his wounds, and then discussed how he stayed at her house for several months, and remained in hiding.
The Tribunal again noted that his evidence in this respect was largely consistent with that provided to the previous Tribunal.
The Tribunal asked the applicant why the Police would still be after him, why they would want to pin an offence on him some four years after he had left Vietnam. The Tribunal noted that the Police had taken his grandmother’s land, that she had settled elsewhere and that for all intents and purposes, the land dispute had been resolved. The applicant replied that the Police needed to get rid of him because no compensation had been paid and that if he reappeared, a compensation claim could still be made.
The Tribunal pointed out that his grandmother was still in Vietnam herself and could make that compensation claim at any time. The applicant made no response.
The Tribunal asked the applicant whether he had any evidence of the Police having been looking for him during the past four years. The applicant replied that just a few months ago the Police asked his grandmother where he was.
The Tribunal asked the applicant whether the Police had produced any Warrant for his arrest. The applicant replied they had not.
The Tribunal asked the applicant whether the Police had produced any Summons requesting him to attend at the Police station for an interview. The applicant replied no.
The Tribunal asked the applicant whether the Police had visited his Aunt’s house (the house at which he was hiding) at any time during the months that he was residing there. The applicant replied no.
The Tribunal asked the applicant why he had not referred to his six month stay with his Aunt in his Protection Visa Application. His application made it clear that he had been at the one address for the duration of his time in Vietnam.
The applicant replied that he did not wish to implicate his Aunt in this matter.
The Tribunal asked the applicant whether he had been interviewed by the Vietnamese authorities whilst he was at [the] Detention Centre. The applicant confirmed that he had not been interviewed by the Vietnamese authorities.
The Tribunal noted that the DFAT Report that it had considered had been updated from the Report that the previous Tribunal had considered. The current DFAT Report was dated 21 June 2017.
The Tribunal advised the Representative that it had analysed the updated DFAT Report and had found that it was not materially different to the DFAT Report relied upon by the previous Tribunal.
The Tribunal discussed with the Representative the corresponding provisions of the new DFAT Report and how it matched the information contained in the previous DFAT Report.
Treatment of Returnees:
5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
5.16 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
5.17 DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the Government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.
Conditions for Returnees
5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.
5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.
Documentation
Ho Khau (household registration)
5.23 The 2006 Law on Residence establishes the household registration system and policies. There are two categories of registration: temporary and permanent (reduced from four under the previous law). In 2013, revisions were made to the law in response to concerns raised by the MPS over rapid urbanisation in major cities and more people changing their status to permanent after one year of residence (previously three years). The revisions tightened the requirements for permanent residence from one year to two years of continuous residence. The 2012 Capital City Law further tightened requirements for permanent residence in Hanoi to three continuous years of residence before status can be changed to permanent.
5.24 Ho Khau registration is initially obtained through the registration of a person’s birth with the village or provincial administrators. Officials use the registration system to determine the levels of services provided to villages and provinces, linking a person’s right to access government healthcare, education and other services to their place of residence. Ho Khau registration is also essential for obtaining employment with the government or in state-owned enterprises. Although health care facilities can be accessed anywhere in Vietnam in emergency cases, public facilities may turn away non-life-threatening cases where the person is not properly registered. Access to schools is determined by Ho Khau registration and administration fees may apply to children not registered in an area zoned for a particular school. For members of minority groups, Ho Khau registration is essential to access development-related entitlements in rural and regional centres. This may include additional language training or employment related training.
The Tribunal noted the currency of the other country information referenced by the previous Tribunal and its reliance on it.
The Tribunal advised the Representative that it would now consider the Representative’s submissions as to new Country Information.
The Representative’s first submission was that the Tribunal cannot rely on the DFAT Report as it cannot rely on Vietnamese government information. The information from the Vietnam government is not reliable. The Tribunal explained to the Representative that the Department of Foreign Affairs and Trade does not simply rely on local government information and government and media releases. The department has its own mission in Vietnam and collects its own information from numerous sources. It prepares the DFAT Report accordingly. The Representative acknowledged that.
The Representative referred the Tribunal to the Home Office Report[12] that she had tendered at the commencement of the hearing.
[12] United Kingdom: Home Office, Country of Origin Information Report – Vietnam, 9 August 2013, available at: >
The Tribunal noted that the Home Office Report was dated 2013. It noted that this report was, in fact, four years older than the current DFAT Report. It clarified with the Representative that the Representative had asked the Tribunal to consider more recent Country Information and asked how a report that was four years older than its own DFAT Report could be considered as more recent information. The Representative acknowledged that the Home Office Report contained information that was prevalent at the time of making the Protection Visa Application.
The Representative then referred to Country Information previously submitted. The Tribunal noted the report located at Folio 27 of the Tribunal file headed “Facts and Details – Land Grabs in Vietnam”. The Tribunal noted again that that report was last updated in May 2014. The report related to the fact of land grabs and disputes still occurring. The report noted that such land grabs can affect the welfare of victims. The Tribunal asked the Representative how this information applied to the applicant. The Representative replied that land grabs still happen and compensation is still not being paid.
The Representative also noted that the applicant might return to Vietnam to protest the land dispute. The Tribunal noted that there had not been presented any evidence during the previous interviews, hearings or this hearing suggesting that the applicant might return and protest about anything.
The Representative drew the Tribunal’s attention to the Amnesty International Report dated 2017/2018. It specifically drew the Tribunal’s attention to a section headed ‘Torture and Ill Treatment’. The Tribunal considered that section. It noted, however, that the applicant was not a prisoner of conscience and queried how the section of the report related specifically to the applicant.
The Representative responded that the Vietnam Criminal Code can easily be applied to almost any circumstance and that accordingly, the applicant could become a victim of its application.
The Tribunal then queried whether the Representative’s submission lent itself more to the application of a consideration of complementary protection. The Representative agreed and noted the shortage of lawyers in Vietnam and commented that lawyers in Vietnam don’t generally have the freedoms of lawyers in Australia and cited some examples.
The Tribunal acknowledged the Representative’s comment, but referred her to section 36(2B)(c) noting that her submission appeared to fall within the exception to the provision - that is, that the risk that she is highlighting is one faced by the population of the country generally and is not faced by the applicant personally.
The Representative agreed with this and stated that that is why everyone wants to come to Australia.
Country of reference / receiving country
The applicant claims to be a Vietnamese national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Assessment of Claims and evidence, and findings:
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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicants’ evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter. The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter.
The evidence of the applicant provided at this hearing was, by and large, consistent with evidence previously given to the delegate and the previous Tribunal. The Tribunal was impressed by the applicant’s enthusiasm and animation in providing the majority of his evidence. There was stark contrast, however, when the applicant was giving evidence in relation to his responses as to whether the Police had made enquiries about his whereabouts recently. In response thereto, the Tribunal found the applicant hesitant and unconvincing.
The Tribunal will deal with each of the applicant’s claims in turn.
Land Seizure and Loss of Household Registration
In relation to these claims, the Tribunal has made findings consistent with those of the previous Tribunal. The Tribunal accepts the applicant’s claims in relation to his resistance to the seizure of his grandmother’s land by the local authorities in [Village 1] in 2012. Whilst the Tribunal also has some doubts as to the extent to which the applicant was beaten and held in detention at the Police station and his escape, it is prepared to give the applicant the benefit of the doubt and accept that the applicant was briefly detained, was the victim of a minor assault, and did escape from a detention cell that was in a building remote to the main building.
The Tribunal accepts the applicant’s evidence that he did stay at his aunt’s house for some six months after this incident. The Tribunal also accepts the applicant’s evidence that the Police did not visit his aunt’s house during the time that he was there or since. No other family members have suffered as a consequence of the seizure of the land or of his opposition to the seizure.
The Tribunal does not accept the applicant’s evidence in relation to recent inquiry as to his whereabouts by the Police. His evidence was hesitant and unconvincing. The applicant produced no evidence of any Warrants for his arrest or any Summons for his appearance at a Police station. Accordingly, the Tribunal does not consider that the applicant has any reason to return to [Village 1], that the Police have any reason to pursue him further in [Village 1] or elsewhere in Vietnam.
The Tribunal is satisfied that the applicant could return to live with this grandmother or his aunt or live close by to either of them. On the basis of Country Information available, and particularly the DFAT Report, if the applicant is returned to Vietnam, he will be provided with a new household registration by the authorities.
The Tribunal is satisfied that the applicant’s activities before leaving Vietnam are not such as to give rise to a real chance that the Vietnamese authorities would harm him for reason of any actual or perceived political opinions. The Tribunal is satisfied that the applicant does not have the kind of profile that places him in the category of a political activist who might attract adverse attention on their return.
Harm Arising from Being a Returning Asylum Seeker
The Tribunal accepts Country Information that Vietnamese authorities target the organisers of people smuggling operations and that asylum seekers tend to be treated as the victims of crime.
Country Information suggests that failed asylum seekers may be briefly detained pending identification checking procedures and may receive a fine for illegal departure. On the basis of this Country Information, the Tribunal is satisfied that the applicant does not face a real chance of harm as a failed asylum seeker should he return to Vietnam.
Harm Arising from Release of Data by the Department
The Tribunal accepts that the applicant’s name, date of birth, address and other identifying information was incorrectly released by the Department as part of the “data breach” that occurred in January 2014.
The Tribunal notes that the information released was basic identity information only and contained no details as to whether those persons had lodged protection claims or the details of such claims. Country Information also indicates that this information may not have been downloaded in Vietnam, though accepts that such information may have ultimately found its way to the Vietnamese government.
100. Having regard to all the circumstances in this case, and the findings made above in relation to the applicant’s status as a person who sought asylum in Australia and one having no political profile, the Tribunal finds that the release of this data does not contribute to, or give rise to, a real chance of serious harm if the applicant returns to Vietnam now or in the reasonably foreseeable future.
Visit by Vietnamese Officials to [the] Immigration Detention Centre
101. Whilst the Tribunal accepts that the applicant was present at the [Immigration] Detention Centre when Vietnamese authorities visited at the invitation of the department, the applicant has made clear in his evidence that he was not, in fact, interviewed by the Vietnamese authorities. No evidence was produced confirming that his personal details were provided to the officials.
102. In the absence of any evidence that information about him was communicated to the visiting Vietnamese authorities, the Tribunal is not satisfied that his claim to fear persecution as a result of the visit by Officials to [the detention centre] is credible. The Tribunal does not accept that the presence of Vietnamese Officials at the detention centre contributes to, or gives rise to, a real chance of serious harm if the applicant returns to Vietnam now or in the reasonably foreseeable future.
Representative’s Submissions
103. As discussed with the Representative during the hearing, the Tribunal has noted that the most recent DFAT Report, dated 21 June 2017, is not materially different to the 2015 DFAT Report relied upon by the previous Tribunal.
104. The Tribunal acknowledges the Country Information referred to by the Representative but again notes that in many cases, that information was not more recent than the prevailing DFAT Report.
105. In relation to the Representative’s submissions in relation to the Vietnam Criminal Code and how it could easily be applied to almost any circumstance and that the applicant could become a victim of its application, the Tribunal does note Section 36(2B)(c) and finds that it has application to the Representative’s submissions, that is, that the risks that she is highlighting are ones faced by the population of the country generally and it is not faced by the applicant personally.
Refugee findings:
106. For the reasons set out above, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Vietnamese authorities because of his resistance to the seizure of his grandmother’s land, his escape from custody, his lack of papers or his attempts to seek asylum in Australia, whether or not the Vietnamese authorities are aware that he sought protection in Australia.
107. The Tribunal is satisfied that the applicant does not have the profile of a political activist, or a person who has acted against the Vietnamese government. The Tribunal accepts that on return to Vietnam the applicant is likely to be prosecuted for having committed an offence against Vietnam’s entry and exit laws by departing the country illegally and travelling by boat to Australia for which he may receive a fine. The Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his illegal departure and having sought protection in Australia.
108. The Tribunal has considered these claims in combination with the fact that the applicant has been inadvertently identified in the Immigration Department’s data breach and that he was present when the Vietnamese officials visited [the detention centre]. The Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of the data breach or by reason that he was present when the Vietnamese officials visited [the detention centre].
Cumulative findings:
109. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his resistance to the seizure of his grandmother’s land, his escape from custody, his lack of papers or his attempts to seek asylum in Australia, his illegal departure, or by reason of the data breach or that he was present when the Vietnamese officials visited [the detention centre] or any other reason if he returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vietnam. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
110. The Tribunal has considered the applicant’s claims under complementary protection.
111. 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). In so doing the Tribunal considered whether there are 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 that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
112. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Vietnam now or in the reasonably foreseeable future. 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.
113. Given the Tribunal’s findings above, it is satisfied that the applicant does not face a real chance of serious harm in Vietnam for reasons of his claimed conflict with the local authorities over the seizure of his grandmother’s house and land, the loss of his household registration, the data breach, or the visit by Vietnamese officials to [the] immigration detention. Nor does it consider the applicant faces a real risk of significant harm for reasons of his mode of departure from Vietnam, or for returning as a failed asylum seeker.
114. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vietnam now or in the reasonably foreseeable future.
115. Accordingly, the Tribunal is not satisfied that there are 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 that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
116. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
117. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.
Overall conclusion:
118. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
119. 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).
120. 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
121. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.
Michael Hawkins
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Appeal
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Jurisdiction
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