1729923 (Refugee)

[2024] AATA 1519

1729923 (Refugee) [2024] AATA 1519 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729923

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Genevieve Hamilton

DATE:6 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 06 February 2024 at 3:09pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – decision on the papers – compulsory military service – political opinion – opposed to the Communist Party – religion – Catholic – corruption in Vietnam – police brutality – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 (Cth) (the Act).

2. The applicant applied for the visa on 18 October 2016. The delegate refused to grant the visa on 10 November 2017.

3. The applicant responded to a pre-hearing outreach by stating that he did not want to have a hearing and consented to the Tribunal making a decision on the papers. 

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

16. In his protection visa application the applicant said he was born in Vietnam in [year] and is a Vietnamese citizen.  He reads, writes and speaks Vietnamese and English.  He is ethnically Vietnamese and his religion is Catholic.  His parents and siblings (two brothers) live in Vietnam.  He last arrived in Australia in November 2013, travelling on a Vietnamese passport.  He came as a student, with a visa valid until March 2015.  In his address history he listed a number of Australian addresses going back to January 2013.  In his education history he states that he completed an English course in Melbourne in March 2013.  He said that he had never worked.  He said he was in monthly phone contact with his parents and brothers. 

17. The applicant said that he left Vietnam to study abroad to avoid compulsory national military service.  If he refuses service he can be imprisoned or sent to re-education then concentration camp.  There is a potential war between Vietnam and China.  All males between 18 and 45 are required to attend the military training.  He has no friends or family members who can protect him. 

18. His parents sent him to Australia to get a better education and qualifications.  They did not want him to study communism, as they do not have human rights in Vietnam including freedom of speech.  Employment prospects are very slim, they cannot practice their religion or express their thoughts.  If they belong to a religious group they cannot get a job in the government.  He dislikes the Vietnamese government deeply because it is for the Communist party and discriminates against normal citizens.  Government officials are corrupt and look after themselves and their own families.  The police force is cruel and beats detainees without regret.  

19. If he returns to Vietnam after living abroad illegally he will be seen as a failed citizen and will be ill-treated by the Government.  Students who return without completing their studies have been discriminated against and punished by being sent to re-education camps, for bringing shame on Vietnam. 

20. The applicant said he was not harmed physically but mentally, by injustice, the wealth gap and corruption.  He and his family had to take compulsory politics lessons and were threatened with re-education camp if they missed them.  There is no organisation that could help him.  The government controls the lives of citizens all over Vietnam. 

21. The applicant said it was harder for him to go back because he is integrated into Australian culture.  He does not have many contacts or communication with relatives.  With no money or property he will be homeless and he will be unable to bribe the authorities and therefore will be mistreated.  If he can’t get a job because of corruption he will not be able to survive.  He will have to borrow from lenders at high interest and if he can’t pay it back he could be beaten and possibly falsely imprisoned.  Returning to Vietnam will be a dead end for him.  

22. It is stated in the Delegate’s decision, a copy of which the applicant submitted to the Tribunal with his review application, that his student visa was cancelled in June 2014. 

    FINDINGS AND REASONS

23. Based on the information in his application the Tribunal finds that the applicant is a national of Vietnam. 

24. The applicant claimed to fear harm for political and religious reasons.

25. The applicant claimed he had avoided military service and that if he refuses service he would be detained.  The applicant is now [age] years old.  DFAT’s Country Information Report on Vietnam states: “Vietnam enforces compulsory military service. Men aged between 18 and 25 must complete two years of military service while women can volunteer. Some people attempt to avoid this service, including by paying bribes. If avoidance is detected and prosecuted, they may face a fine or prison term, especially for repeat offenders.” 

26. If the applicant has been of interest to the Vietnamese authorities for evading military service the Tribunal would expect there to be some documentary evidence of this.  He can’t be called up now because he is [age] so he would not be “refusing” to do military service.  South East Asia tensions with China do not, in the Tribunal’s assessment, present a real risk of war while the applicant is of fighting age. 

27. The applicant said he and his family oppose the Communist Party and that they had had to take compulsory political lessons under threat of re-education camp.  Without more information about these lessons the Tribunal does not accept this claim.  It accepts that he is opposed to the Communist Party and that freedom of political expression is constrained.  The DFAT report states:

    ”the Communist Party of Vietnam (CPV) maintains tight political control and the space for political dissent remains limited…. Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.”

28. The report goes on to assess the risk to political activists, but the applicant has not put forward any evidence that he is an activist.  The Tribunal is not satisfied that the applicant is at risk of serious harm due to his political opinion.  The Tribunal is not satisfied, on the evidence before it, that the applicant has been caused mental harm due to his political opinion. 

29. There are some restrictions on religious practice in Vietnam.  The DFAT report states:

    A key distinction is between registered and unregistered faith groups. After the Vietnam War and the establishment of the unified Socialist Republic, the state created official religious groups and, since then, further groups have become registered. Registered groups worship with limited or no Government interference; those that are not registered may be pressured by Government to join the registered group. Among unregistered groups a further distinction can be made between those groups that have some (perceived) political or foreign agenda and those that do not. …

    There are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. Such cases are fewer in recent years but those who have been arrested and imprisoned in the past might still be under surveillance by authorities or summoned for regular interrogation. DFAT understands this is generally limited to questioning and surveillance and not violence.

    DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place. Those in large cities are particularly free to practise. Adherents associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.

    DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. …  Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.

30. The applicant does not claim to have the profile of a religious freedom activist and it is not known whether he associates with a registered or an unregistered Church.  There is no information before the Tribunal supporting his claims that Christians cannot get employment.  On the evidence the Tribunal is not satisfied that the applicant faces a real chance of serious harm due to his religion or that he cannot practice his religion. 

31. The applicant complains of corruption in Vietnam, which is certainly a big problem.  A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months.  However, the applicant did not mention any specific instances where he had been affected by corruption.  He said he might not be able to get a job because of corruption but this is speculative.  The Tribunal is not satisfied that the applicant will be caused serious harm of the type envisaged in the refugee provisions of the Act, due to the prevalence of corruption. 

32. The applicant complains of police brutality which is also a problem in Vietnam.  “Police abuse is commonplace in situations of arrest or interrogating suspects; limited oversight for such actions exists”.  (Country of Origin Information Services Section (COISS) Vietnam Common Claims 22 June 2023).  But the Tribunal is not satisfied that there is a real chance that the applicant coming into contact with police in a way that he will be exposed to violence. 

33. The applicant claimed that he would be punished because he has lived here illegally and not completed his studies and therefore brought shame on Vietnam.  The DFAT report says: “Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government.”  While the applicant did not mention being at risk due to claiming asylum, the DFAT information is still instructive.  There is no evidence that returning Vietnamese, including students, are harmed due to breaching Australia’s visa conditions, certainly nothing supporting the claim that non-completing students are sent for re-education. 

34. The applicant said he was very integrated into Australian culture.  It is not clear how this presents a risk of serious harm on return to Vietnam other than social discomfort.  The Tribunal is not satisfied that he is at risk of homelessness or will have to borrow money: his contentions about these prospects were speculative.  His evidence was inconsistent about his family, as in his protection application he said he was in monthly contact.  The Tribunal does not accept that he has no family support. 

35. In summary, the Tribunal does not accept that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

36. Having considered all the evidence, the Tribunal is similarly not satisfied there are substantial grounds to believe that on his return to Vietnam there is real risk that the applicant will suffer significant harm of the types referred to in S 36(2A). 

    CONCLUSION

37. 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) or s 36(2)(aa).

38. 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.

39. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member