1729155 (Refugee)

[2019] AATA 5354

1729155 (Refugee) [2019] AATA 5354 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729155

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Michael Hawkins

DATE:26 February 2019

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 26 February 2019 at 8:25am

CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – jurisdictional error – application to be regarded as Temporary Protection (Class XD) visa – applicant declined hearing invitation – decision made on papers – religion – Catholic – resistance to seizure and demolition of parents’ property – failure to respond to summons – father’s debt – subject of department’s data breach –protection (Class XA) visa decision set aside and substituted with refusal to grant Protection (Class XD) visa

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 65, 45AA, 91R and 91S, 242AA, s424AA, 499

Migration Regulations 1994 Schedule 2, r 2.08F

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 25 June 2014 and the delegate refused to grant the visa on 24 December 2014.

3. 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.

4. The applicant appeared before the Tribunal (differently constituted) (“the previous Tribunal”) on 16 February 2016 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant sought judicial review of that decision by the Federal Circuit Court. The Court ordered, by consent, [in] June 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 45AA of the Act and regulations 2.08F of the Regulations, to be treated as an application for a Temporary Protection (Class XD) visa.

6. The applicant appeared again before the Tribunal on 10 March 2017 to give evidence and present arguments. That 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.

7. The Minister sought judicial review of that decision by the Federal Circuit Court. The Court ordered, by consent, on 20 November 2017 that that decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law.

8. On 25 January 2019, the applicant was invited to attend a hearing at the Tribunal on 11 February 2019 to give evidence and present arguments. The applicant, through his representative, requested a postponement in order for the representative to seek instructions. The Tribunal agreed to adjourn the hearing date until 19 February 2019.

9. On 14 February 2019, the applicant, through his registered recipient, advised the Tribunal that he did not wish to appear before it. The Tribunal confirmed on 15 February 2019 that the applicant had declined the Tribunal’s invitation to attend a hearing.

10. Accordingly, this matter has been determined on the evidence available to the Tribunal.

    RELEVANT LAW

11. 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

12. 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).

13. 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.

14. 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.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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’).

23. ‘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.

24. 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

25. 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

26. 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:

27. The applicant is [an age] year old man from [a village in] [District 1] district, province of Nghe An, Vietnam.

28. The applicant is of the Christian Catholic faith, is of Vietnamese ethnicity and speaks Vietnamese.

29. The applicant is single.

30. The applicant departed Vietnam illegally by boat [in] May 2013 and travelled to [Country 1]. He arrived in Australia by boat without valid identity documents [in] May 2013.

31. The applicant had an Age Determination Assessment on 23 May 2013.

32. The applicant had an Entry Interview on 1 June 2013 and 4 June 2013.

33. The applicant applied for a protection visa on 25 June 2014.

34. The applicant was interviewed on 10 October 2014 at [a detention centre].

    Claims:

35. The applicant’s claims are set out in his statutory declaration dated 15 June 2015 provided to the previous Tribunal.

36. The applicant claims to fear to return to Vietnam as he is a land rights activist and follower of the Catholic religious faith with an anti-government profile.

37. The applicant claims he verbally and physically opposed the Vietnamese government's seizure of his family's land by protesting and demonstrating. He claims he had two summons issued to him by two levels of police for this.

38. The applicant claims he fled Vietnam to escape punishment as he knew that the Vietnamese authorities persecute Catholics and land rights activists.

39. The applicant fears he will be subjected to imprisonment and physical and mental abuse by the Vietnamese authorities if he returns to Vietnam. He claims to be also fearful as the Vietnamese government may believe he has an increased profile as anti-Vietnam after his time in Australia.

    Evidence:

40. The Tribunal has before it a range of material, including, relevantly:

    §The applicant’s protection visa application form lodged on 25 June 2014 (“visa application”), including statement dated 16 June 2014;

    §The applicant’s identity documents;

    §The protection visa decision record (‘delegate’s decision record’) of 24 December 2014;

    §The review application form which included a copy of the delegate’s decision record;

    §Statutory Declaration of the applicant dated 15 June 2015;

    §Submissions from the applicant’s representative dated 15 June 2015;

    §Interview with the delegate dated 10 October 2014;

    §Two summons with English translations;

    §Decision of the previous Tribunal dated 16 February 2016;

    §Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Vietnam, published on 21 June 2017.

    Country of reference / receiving country

41. 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.

    Hearing:

42. On 25 January 2019, the applicant was invited to attend a hearing at the Tribunal on 11 February 2019 to give evidence and present arguments. The applicant, through his representative, requested a postponement in order for the representative to seek instructions. The Tribunal agreed to adjourn the hearing date until 19 February 2019.

43. On 14 February 2019, the applicant, through his registered recipient, advised the Tribunal that he did not wish to appear before it. The Tribunal confirmed on 15 February 2019 that the applicant had declined the Tribunal’s invitation to attend a hearing.

44. Accordingly, this matter has been determined on the evidence available to the Tribunal.

45. The evidence available to the Tribunal is referred to above.

    Evidence from interview with delegate:

    The applicant was born [in] [District 1], Vietnam.

    The applicant is an ethnic Kinh and a Catholic.

    The applicant's family owned some land and attached to the front of the house was a [shop]. This shop was the main source of income for his family.

    In August 2009, he went to [a location] to attend a church service but the local police stopped him and did not allow him to attend.

    The Vietnamese government imposed land acquisition on his family's property. In July 2011, the authorities sent two bulldozers to demolish his family's house.

    On the day of the land acquisition, there were important local authorities at the site. In attendance was [an official] of the communal authority and [an] official of the land management committee at the communal level. Also, present were about 10-12 police at the communal and district levels. The public transport representative was there as well. They were involved in the decision to demolish his family's house.

    The applicant was helping his family stop the authorities by standing in front of the bulldozers. The police said his family was fighting against the government and handcuffed his mother, [sister] and him.  He was also hit [by] the police. The authorities threatened his family that if they did not let them do their jobs, they would imprison his family under the charge of fighting against public servants.

    The shop in front of the house was destroyed. After this incident, his family had no more income. The authorities destroyed the shop to widen the road [from] 6m to 18m. Only some households were compensated for their land. His family was not one of them. From his point of view, it is unfair and put them at a great disadvantage as they had lost their land and livelihood.

    In August 2011, at least 50 commune residents including the applicant, held a protest in front of the headquarters of the communal authorities for fair and equal compensation for the reclaimed land. During the protest [a] Commune [official], made threats against them, saying if they did not disperse but continued with the riots he would mobilise some forces to come and arrest all of them. The protest lasted almost the whole day, from morning to mid-afternoon and ended when the police came and told everyone to go home. At first they told the protesters to disperse but they did not leave. The applicant thinks the authorities wanted to resort to forcing them to disperse but they dispersed without violence. However, the applicant still felt afraid after it ended.

    Three days later, the Commune [official] sent the applicant a summons to go to the district authorities as he had participated in the protest. He and his family spoke about whether or not he should go. He was fearful that he would  be arrested and charged with something he had not done. His parents said he should escape to his grandparents' home temporarily.

    When the applicant did not report, the authorities confronted his parents about his whereabouts. His parents told the police he was busy working somewhere else. The police continued to visit his family home looking for him.

    The applicant's family continued sending letters of complaint to the district authorities. However, the authorities did nothing to resolve their problem. Only [number] households were compensated. His household were among those who had not received anything. All the households who did not receive compensation were Catholics. Therefore, the applicant believes they were victimised due to religious discrimination.

    The applicant stayed with his grandparents who lived in [District 1][Nghe An], for about one year until he left for Australia. His father's friend was aware of their circumstances and made the arrangements for him to get out of Vietnam and fly to [Country 1]. From there, he left by boat which was caught by the Australian Navy and [he] arrived [in] May 2013.

    His parents are still trying to get their land returned of compensation. Also, the police are still looking for him and have visited his family several times.

    While in immigration detention, the applicant's personal information was leaked on the Department's website. He is very concerned that the Vietnamese authorities will cause problems for his family.

1. Evidence from Statutory Declaration dated 15 June 2015, identified as “Matters I wish to clarify from the interview”

   Entry interview

   When I came to Australia, I was very scared and confused. The trip [to] [Country 1] to Australia was very long and tiring and I never knew what was happening. I didn't know if anyone would help me or who to ask for help.

   In my Entry Interview I gave the incorrect date of birth. I said that I was born in [year] instead of [year] and that I came to Australia to work and make a living. At the time, I was still scared and mistrustful of authority figures and I wasn't sure if what I told the Australian government would be passed along to the Vietnamese government.

   I was especially scared that if I did tell the Australian government right away that I was suffered harm in Vietnam, that they might turn me away, tell the Vietnamese government and that my family would suffer.

   I told the Department of Immigration (the Department') of my real date of birth once I had settled down a bit and realised that I could talk to the Department officials.

   The land seizure

   In July 2011, the Vietnamese government took part of my family's land by demolishing the front part of our house. The front was our family's shop which was our main source of income. The government took it so that they could widen the public road.

   We weren't told before that it would happen. One day, the two bulldozers were sent to our house and land official told us that they were going to demolish our house. They told us that we wouldn't get any money for it.

   There were many important people there on that day. There was [an official] of the communal authority, [and] an official of the land management [committee]. There were over 10 police officers there from both the commune and district.

   My family and I tried to stop them from our house by standing in front of the bulldozers. The police handcuffed me, my mother and my [sister] and said that we were fighting against the government, The police hit me [repeatedly].

   The police told my family that they would imprison us if we didn't let the land officials do their job. They demolished the shop front and to this day have not given us compensation for it even though they knew it was our main source of income.

   The protest and fleeing to my grandmother's house

   We found out that there were many other Catholic commune residents who didn't get compensation. My family and I spent the next month writing letters complaining to the authorities. I don't have these documents and don't remember what they said exactly because my family took care of it. I am not the oldest child so I was not expected to have to deal with matters like that.

   In August 2011, 50 commune residents or more plus my family and I protested in front of the communal authorities. The protests were peaceful. We wanted the authorities to give us fair and equal compensation for the reclaimed land but we didn't want to get beaten or arrested.

   The authorities threatened us for protesting. They said that they would report us to the district authorities for protesting as well as reporting us themselves.

   Three days after the protest, I received two summonses: one from the [District 1] District Police and the other from the [village] police. I was very scared because the authorities said that they were going to imprison me and then they sent out two summonses to get me into their offices.

   I was so scared because I knew that the police are brutal and that they torture and beat Catholics and land rights activists. I remembered back when the police stopped me from going to church in 2009 because they were having a dispute with the church about land. I also knew of others who had been beaten and tortured after they had been arrested or imprisoned. I fled to my grandmother's house in a neighbouring commune because I thought that they wouldn't look hard for me there.

   The authorities went to my family's house many times to find out where I was. My mother told them that I had moved far away to work and that I wasn't studying [anymore].

   I tried to continue living everyday life as best as possible while at my grandmother's house. I continued school by going traveling all the way around the village to avoid the police.

   National Identity Card

   I got my National Identity Card in 2012 as it is required in Vietnam for everyday life. When someone turns 14 or 15, they normally get their National Identity Card. I got my card by applying through my school. Officials from the district office came and took my photographs and fingerprints along with the rest of my classmates. I was worried that the officials would figure out who I was and that I had summonses outstanding, but they didn't realise as I was just one person amongst many in my high school. When it came time to pick up the card from the district office, I sent a family member to pick it up so that I didn't have to go myself.

   Passport

   I applied for my passport through the Vinh city office. Vinh city is far away from my home town and the authorities who look after passports are different than the commune and district authorities. I was very scared to go into such an important place full of high ranking officials, but I didn't think that they would be aware of my summonses in my commune or district.

   At the time I knew that the best thing to do was have my passport just in case I needed to flee the country, so I went to the office with my sister and applied. I received the passport one week later in [2013].

   Increased anti-government profile

   Now that I have applied for asylum in Australia, I am scared to go back because I know that Catholic returnees are persecuted or unable to return to their families when they go back to Vietnam.

   I am also worried because I met with the A18 secret police when I was at [the] Immigration Detention Centre. The Al8 police are part of the police force that look into immigration and national security. They may inform the other police levels that I am in Australia and that I am seeking refuge here because of land acquisition and religious persecution.

   My fear of persecution

   For the reasons outlined above, I fear that I may be imprisoned, beaten and unable to return to my family if I am sent back to Vietnam.

   Everything that I have stated is true to the best of my knowledge.

2. Evidence from hearing with previous Tribunal:

   At the hearing, the Tribunal asked the applicant what he feared if he returned to Vietnam.  The applicant stated that he feared persecution from the government.  His family’s block of land has been taken by the government.  He and his family went to protest, and he was handcuffed and beaten.

   When asked to provide further details of his claim, the applicant stated that the authorities wanted to widen the frontage of [the] street.  They never gave any notification.  One day they came with machinery to destroy the applicant’s home.  The applicant and his family protested, and they were handcuffed and beaten.  The front of the house, where there was a shop, was demolished.  The back of the house is intact, and the applicant’s family still lives in the back of the house.  The applicant’s family have lodged an application in a Vietnamese court, but no decision has yet been made.

   The Tribunal asked the applicant how many houses were demolished.  The applicant stated that there were about [number] houses demolished, but only [number] received compensation.

   The Tribunal asked the applicant whether houses on both sides of the street were demolished, or just on his side.  The applicant stated that the houses were on both sides of the street.

   The Tribunal asked the applicant whether his family’s house was at the end of the row of houses demolished, or in the middle.  The applicant stated that it was in the middle.

   The Tribunal asked the applicant whether the owners who received compensation were told about the compensation before or after the demolitions.  The applicant stated that they were informed prior to the demolition.

   The Tribunal put to the applicant that it had some doubts about the plausibility of his claims.  Firstly, the applicant had stated he had no notice of the road widening until demolition machinery appeared outside of his house.  Given his house was in the middle of the row of houses to be demolished, it might be difficult to accept that the authorities would have started with his house rather one of the houses at the end.

   The applicant stated that he had no idea why they would do that.  He is telling the truth that the house was demolished without notification.

   Secondly, the applicant had stated that [number] out of the [number] landowners had been told they would be compensated before the demolitions took place.  The Tribunal put to the applicant that if [number] of the landowners were aware that the road widening was to take place, it might have expected there to have been discussion in the neighbourhood about the proposal.  The Tribunal found it difficult to accept that the applicant would have been unaware of the road widening proposal.

   The applicant stated that he was “sort of told” before the demolition, but they were not the list of those being compensated.

   The Tribunal asked the applicant to tell it about the subsequent protest.  The applicant stated that after the demolition, about 50 people went to the [District 1] police station to protest.  They were told to disburse.  About 3 days later, the applicant received the summons.

   The Tribunal noted that both summons were issued [in] August 2011.  One required the applicant to appear at [District 1] police station at 2 pm, and the other required him to appear at [the village] police station at 7 am.  The Tribunal put to the applicant that he had been protesting outside [District 1] police station, but it was not clear why he would also have received a summons from [the village] police station.

   The applicant stated on the day his house was to be demolished, police came from both [District 1] and [the village] police stations.

   The Tribunal asked when the summons were served.  The applicant stated that he was not home at the time.  His mother told him about them.  He thinks they were delivered the day before.

   The Tribunal noted that both summons were dated [August] 2011.  The [village] police station summons required him to appear at 7 am on that day.  The Tribunal put to the applicant that it appeared implausible that the summons require an appearance at 7 am on the day it was issued, or alternatively that it had been served on the applicant’s mother the day before it was issued.  The Tribunal referred to the information in the delegate’s decision that document fraud is widespread in Vietnam, and put to the applicant that it might conclude that the two summons were fraudulent documents.

   The applicant stated they cannot be fraud.

   The Tribunal put to the applicant that its concerns about the plausibility of his account concerning the demolition, together with its concerns about the authenticity of the summons, might lead it to conclude that the claimed events never took place.

   The applicant stated that he was not aware the [number] owners had received compensation until after the demolitions.

   The Tribunal asked the applicant whether his father was in debt.  The applicant stated that he was.

   The Tribunal asked the applicant whether this was the reason he came to Australia.  The applicant stated it was part of the reason.  The other part of it was fear of being beaten and persecuted.

   The Tribunal asked the applicant whether he feared his father’s creditors.  The applicant stated that his fear relates to the government.  He was handcuffed and beaten before he left.

   The Tribunal put to the applicant, using the procedure in s.424AA of the Act, his following responses from his entry interview on 1 June 2013:

   Briefly tell me why you left Vietnam?

   Because my father has created a lot of debt for the family.  And the land and house has been pawned.  People told me that if I go to Australia they will help us.

   How are you expecting Australia to help?

   I was told if I go to Australia I could get a job.

   Is there any other reason why you left Vietnam?

   That is all.  Because of the debt.

   What will happen if you can’t pay back the debt?

   They land and property will be confiscated by them.

   By who?

   I don’t know.  The people my father owed money to.

   The Tribunal explained to the applicant that this information was relevant to the review because it is inconsistent with the claims made in his statutory declaration and at hearing.  When given the opportunity, the applicant failed to mention that his family’s land was seized by the government and his house partially demolished.  Further, he did not claim in his later statements that he fled Vietnam because of debts owed by his father.  This might cause the Tribunal to find that the applicant is lacking in credibility and to reject his claims, which would form part of the basis for affirming the decision under review.  The Tribunal invited the applicant to comment, and advised that he was entitled to request further time to comment if he wished.

   The applicant stated that he said at the first interview that he came to Australia to get a job to help his family.  When he first landed in Australia, he still had a lot of fear.  He was afraid of being deported.

   The Tribunal put to the applicant that he came to Australia to claim asylum, so it would have expected him to be able to tell the Australian authorities why he was seeking asylum.  The applicant stated that after a short while in Australia, he gained the courage to tell his story.

   The Tribunal asked the applicant whether he had any fears as a result of being a practising Catholic.  The applicant stated that he was prevented by the police from attending a church in 2009.  The service was to pray for those illegally detained.  

   The Tribunal asked the applicant whether he had experience any other difficulties with his religious activities.  The applicant stated that prior to the 2009 service, there had been another service where people were detained, although the applicant was not present at the earlier service.

   The Tribunal put to the applicant the independent information relating to the position of Catholics generally in Vietnam, as set out below.  It also put the information from 2014 that suggested normal church activities were taking place in Nghe An.

   The applicant stated that the most recent website stories concern a priest who was detained and beaten by the authorities.  He does not have the information with him, but the applicant invited the Tribunal to search on the internet.

   The Tribunal asked the applicant about a visit from Vietnamese officials while he was in detention.  The applicant stated that he spoke to A18 officers.  They asked for his name, address and place of birth.  The applicant signed a form consenting to speaking to them, because he was told that the Department would stop processing his claims if he did not. 

   The Tribunal asked the applicant whether he spoke about his refugee claims with the Vietnamese officials.  The applicant stated that the officials did not ask him about his refugee claims.  He noticed that since the visit some of his friends have returned to Vietnam.

   The Tribunal put to the applicant the independent information relating to the treatment of failed asylum seekers to Vietnam, as set out below.  The Tribunal noted that in order to return to Vietnam, the Vietnamese authorities would have to issue the applicant with a travel document because he had disposed of his passport.  Given that the applicant had not discussed his refugee claims with the A18 officers, the Tribunal might form the view that he was not at any higher risk than any other failed asylum seeker if he were to return to Vietnam.

   The applicant stated that some of his friends had returned to Vietnam, and were questioned and physically abused on arrival.

   The Tribunal referred to the data breach.  It put to the applicant that the information was accessed by 104 IP addresses, but none of the locations were in Vietnam.  The Tribunal might therefore not accept that the applicant’s details were made available to the Vietnamese authorities.  Further, the applicant had not lodged his protection visa application at the time of the data breach, so it was impossible for the breach to have disclosed he was seeking a protection visa.

   The applicant stated that he would like his claims to be seriously considered.  His evidence is the truth.

   The Tribunal asked the applicant whether there was anything else he wished to raise.  The applicant stated that he wanted more time to provide evidence about the taking of land off people in Vietnam.  The Tribunal noted that the representative had already lodged submissions in relation to this issue.  The applicant stated that he had only recently discovered some of this information, and he had not spoken with his representative in a long time.  The Tribunal put to the applicant that the representative’s letter dated 11 February 2016 indicated that the applicant had spoken with him last week.  The applicant stated that he had spoken to the representative’s assistant about where he lived.  The applicant went on to state that he has not paid his representative, and hopes to find ways to meet his instalments.

   The Tribunal put to the applicant that the hearing invitation was issued on 22 December 2015, and that he had had ample time to gather information prior to the hearing.  The applicant stated that he was not previously aware of the information put to him at the hearing about conditions in Vietnam.  The Tribunal noted that the information relied on by it was in substance identical to that contained in the delegate’s decision dated 24 December 2014.  He had had over a year’s notice of that information.

   The Tribunal declined to provide the applicant with an opportunity to present further information after the hearing.  The Tribunal is satisfied that the applicant had ample notice of the hearing, and the information relied on by the Tribunal is substantially identical with that set out in the delegate’s decision.  The applicant’s representative had previously lodged detailed submissions in response to the delegate’s decision.  While the applicant may be having issues with paying the representative, the Tribunal does not consider that is an appropriate reason to delay its decision, particularly given the long timeframe in the lead up to the hearing.

3. Country information discussed at the hearing of the previous Tribunal:

   Information accessed by the Tribunal says that Catholicism is an officially recognised religion in Vietnam, however, the Vietnamese Government does not recognise the official Roman Catholic Church or the authority of the Vatican. Under Vietnamese law all religious denominations and individual congregations must be registered with state authorities. Government reforms to increase general religious freedom have resulted in the opening of new Catholic churches and the training of new clergy. At the same time, the number of people joining the Catholic Church in Vietnam has increased.

   The US Department of State, July-December International Religious Freedom Report, 13 September 2011[1] stated:

   [1] Accessed by the Tribunal at

   Although government statistics indicate there are 6.28 million Catholics, other estimates place the number at eight million. Catholicism has revived in recent years with newly rebuilt or renovated churches and a growing number of persons who want to be religious workers. Three archbishops, 44 bishops, and nearly 4,000 priests oversaw 26 dioceses. There are more than 10,000 places of worship including six seminaries and two clergy training centers. The number preparing for the priesthood has grown by more than 50 percent over the past five years and now totals 1,500, according to the Vatican.

   The 2013 Report of the US Commission on International Religious Freedom stated[2]:

   Catholicism continues to grow rapidly in Vietnam, and the church has expanded both clerical training and charitable activities in recent years. Hanoi and the Vatican continue to discuss resuming diplomatic relations. Nevertheless, the relationship between the Vietnamese government, some members of the Church’s hierarchy, Catholic laity, and members of the Redemptorist Order continue to be tense. Over the past several years, including in the past year, Catholics have been detained for participating in peaceful prayer vigils and demonstrations at properties formerly owned by the Catholic Church. In addition, government officials have employed “contract thugs” to assault and intimidate Catholics from engaging in both private study and worship at “unregistered” locations.

   Nevertheless, Hanoi continues to discuss with the Holy See conditions for the normalization of relations. Nguyen Phu Trong, the general secretary of the Communist Party, had a private audience with Pope Benedict XVI in January 2012. The government maintains veto power over appointments of bishops, but often cooperates with the Vatican in the appointment process. Catholic leaders in Ho Chi Minh City reported that they often move ahead with ordinations and placement of priests without seeking government approval. All students must be approved by local authorities before enrolling in a seminary and again prior to their ordination as priest.

   In October 2012, authorities in Quang Binh province returned property formerly owned by the Catholic Church after decades of petitions from parishioners. In November 2012, the Ho Chi Minh City People’s Committee granted a Catholic orphanage for AIDS-affected children permission to operate, the first time the government has allowed religious control of a social, health, or educational entity.

   The Tribunal notes that normal Catholic Church activities have been reported in Nghe An province. In September 2014, Bishop of Vinh diocese, in which Nghe An Province sits, said that since clashes in September 2013, dialogues have helped address the situation.[3]  Further, looking to the future, the independent information is that normal activity has resumed in the area certainly since 2014. The Union of Catholic Asian News’ (UCAN’s) webpage on Vinh Diocese, created in 2014, states:

   In recent years, the local Church has built new churches and facilities and revived old parishes and associations. The diocese aims to train catechists, lay leaders, priests and Religious. Diocesan committees and advisory, presbyteral, pastoral and finance councils are established. Funds for pastoral activities and flood victims are created.

   Another its [sic] top priority is evangelization. Local Catholics are urged to evangelize themselves, their families and other people.  …[4]

   The country information from Department of Foreign Affairs and Trade (DFAT) is that according the Vietnamese Ministry of Justice claimed that returnees who are failed asylum seekers “are not harassed or discriminated against by authorities on their return to Vietnam”.  They are also able to obtain registration if their previous registration has lapsed. DFAT reported that post in Hanoi was not aware of any information that contradicts this claim.[5]  Furthermore, the United States Department of State reported that the Vietnamese government generally cooperated with the United Nations High Commissioner for Refugees (UNHCR) and other humanitarian organisations in providing assistance to returning refugees.[6]  In addition, DFAT advised in 2007 that it was unlikely that a person who left Vietnam illegally would suffer punitive action from Vietnamese authorities if sent back to Vietnam.[7]  In the UK Home Office Country of Origin Information Report discussed restrictions imposed on the movement in and out of Vietnam of certain individuals, namely, political dissidents, but made no mention of failed asylum seekers being punished on return to Vietnam for leaving the country illegally.[8]

   [2] Accessed by the Tribunal at

   [3]  Radio Free Asia Vietnamese Service 2014, ‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia website, 10 September < UCAN [Union of Catholic Asian News] n.d. [page created 12/01/2014], ‘Diocese of Vinh’ at ‘General’ tab, UCAN directory. Database of Catholic Dioceses in Asia website < [accessed 19 November 2014] <CISNET BACIS CX1B9ECAB8097>.

   [5] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.

   [6] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Vietnam, 24 May, Section 2(d)

   [7] Department of Foreign Affairs and Trade 2007, CIS Request No VNM 8771: Update on treatment of Vietnamese returnees, 1 February (CISNET Vietnam CX170139).

   [8] UK Home Office Country of Origin Information report August 2013

   Assessment of Claims and evidence, and findings:

1. 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).

2. The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.

3. The Tribunal was particularly persuaded by the exchange had between the applicant and the previous Tribunal using the procedure under s242AA of the Act in relation to the applicant’s responses at his Entry Interview.

4. That exchange extracted information that his father had created a lot of debt for the family and that the family home had been pawned.

5. The applicant stated that he was told that if he went to Australia he would get a job.

6. The applicant stated that was the only reason he left Vietnam – because of the debt. And that the land will be confiscated by the debt collectors.

7. That exchange, and the fact it was carefully discussed pursuant to s424AA, has caused this Tribunal to have the gravest concerns about the genuineness of the applicant’s claims.

8. The Tribunal will deal with each of the applicant’s claims in turn.

9. The Tribunal accepts that the applicant is from Nghe An in Vietnam, and that he is a practicing Catholic.

   Land Seizure

10. The Tribunal does not accept that the family home of the applicant was seized or demolished by the authorities for road-widening purposes.

11. Firstly, the Tribunal notes the applicant’s failure to mention the demolition of the applicant’s house in his entry interview.  The Tribunal does not accept the applicant’s explanation that he did not mention it because he was fearful.  The applicant travelled to Australia to seek asylum, and could be expected to be prepared to state his claims for asylum to the very people who are attempting to provide him that protection on arrival.

12. Secondly, the evidence of the applicant that he had no notice of the proposed demolition until they arrived with machinery was actually contradicted by the applicant and in any event is implausible. There were allegedly [number] other houses to be demolished, with [number] of them allegedly told they would receive compensation – one would have expected there would be some discussion in the neighbourhood about that. Furthermore, it is somewhat implausible that his house, in the middle of the street, would be the first to be demolished.

13. The Tribunal noted country information in relation to the prevalence of fraudulent documents and agrees with the previous Tribunal and delegate that the two summons’ are fraudulent documents. Like the previous Tribunal, the Tribunal considers it implausible that two summons would be issued by two different police stations requiring him to present himself on the same day being the day on which the summons were issued. In particular, the Tribunal considers it implausible that the [village] police station would have issued a summons [in] August 2011 requiring him to present himself at 7 am on that day. Furthermore, the Tribunal does not accept the applicant’s explanation that the summons was served the day before, noting that this would have required the summons to be served the day before it was issued.

14. The Tribunal finds that when these factors are considered together, the applicant’s claims are completely lacking in plausibility.  Accordingly, the Tribunal finds that the applicant’s house was not partially demolished.  It follows that the Tribunal also finds that the applicant did not participate in protest activity concerning the demolition, and that the applicant is not of interest to the authorities as a result of any protest activity.

15. 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.

16. The Tribunal is satisfied that the applicant does not have any kind of profile that places him in the category of a political activist who might attract adverse attention on their return.

17. The Tribunal has considered whether the applicant might fear his father’s creditors. The Tribunal is satisfied that the applicant does not have a subjective fear of his father’s creditors as he did not seek to discuss such claims when invited to do so. Accordingly, the Tribunal finds that the risk of the applicant being harmed by his father’s creditors is remote.

    Harm arising from being a Catholic in Vietnam

18. The Tribunal notes country information from the DFAT Report.

    Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.[9]

    DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.[10]

    In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.[11]

    [9] Paragraph 3.9, DFAT Report 2017

    [10] Paragraph 3.10 DFAT Report 2017

    [11] Paragraph 3.12 DFAT Report 2017

19. The Tribunal finds that the situation has improved for Catholics in the applicant’s province since the applicant’s departure and since the events of 2009 referred to by the applicant in his evidence.  It is clear from the independent information that Catholicism is an officially recognised religion in Vietnam, that there are at least 6 million Catholics in Vietnam, and that generally Catholics are able to practise their religion freely and openly.  Given the improvements in the local situation, the Tribunal finds that the applicant would be able to practise his religion as an ordinary Catholic parishioner without restriction. 

20. The Tribunal has previously found that the applicant is not of interest to the authorities.  The Tribunal therefore finds that the risk of serious harm to the applicant because of his Catholic religion is remote.

21. The applicant referred to an internet article he had read about a priest being detained and beaten by the authorities.  The Tribunal has been unable to verify the existence of this article. Accordingly, the Tribunal has preferred to accept the country information referenced above.

    Harm Arising from Being a Returning Asylum Seeker

22. The Tribunal noted 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.

23. 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.

24. Country Information suggests that failed asylum seekers may be briefly detained pending identification checking procedures and may receive a fine for illegal departure. The Tribunal notes that the applicant departed Vietnam pursuant to a valid passport and therefore departed lawfully.

25. 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

26. 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.

27. 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.

28. 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 [Immigration] Detention Centre

29. Whilst the Tribunal accepts that the applicant was present at the [Immigration] Detention Centre in [2013] when Vietnamese authorities visited at the invitation of the department, the applicant has made clear in his evidence that the Vietnamese authorities did not ask him about his refugee claims and he did not tell them about his protection claims. No evidence was produced confirming that his protection claims were provided to the officials. In any event it is noted that he did not make his protection visa application until June 2014.

30. In the absence of any evidence that information about his protection claims were 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.

31. The Tribunal notes that the applicant claimed to have heard about friends who were harmed after returning to Vietnam.  The Tribunal is unable to verify these stories.  The Tribunal notes that DFAT, the US Department of State and the UK Home Office are highly reputable sources, and the Tribunal places greater weight on their reports.

    Refugee findings:

32. 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 and demolition of his parent’s land, his failure to respond to the summons, his Catholic faith, his father’s debt collectors, or his attempts to seek asylum in Australia, whether or not the Vietnamese authorities are aware that he sought protection in Australia.

33. 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 not likely to be prosecuted for having committed an offence against Vietnam’s entry and exit laws by departing the country illegally. The Tribunal is satisfied that the applicant departed Vietnam legally. The Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his departure from Vietnam and having sought protection in Australia.

34. 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] and interviewed him.

    Cumulative findings:

35. 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 and demolition of his parent’s land, his failure to respond to summons, his Catholic faith, his father’s debt collectors, or his attempts to seek asylum in Australia, his departure from Vietnam, or by reason of the data breach or that he was present when the Vietnamese officials visited [the detention centre] and was interviewed by them 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?

36. The Tribunal has considered the applicant’s claims under complementary protection.

37. 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).

38. 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.

39. 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 and demolition of his parent’s house and land, his Catholic faith, his father’s debt collectors, his failure to respond to summons’, the data breach, or the visit and interview by Vietnamese officials to [immigration] detention. Nor does it consider the applicant faces a real risk of significant harm for reasons of his departure from Vietnam, or for returning as a failed asylum seeker.

40. 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.  

41. 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

1. 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

2. 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:

3. 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).

4. 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).

5. 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

6. 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