1731274 (Refugee)

1731274 (Refugee) [2019] AATA 1285 (11 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731274
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Christopher Smolicz
DATE:11 January 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 January 2019 at 4:44pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – claim of being leader in local Catholic community – targeted by police – land resumption – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA. 36, 65, 189, 499
Migration Regulations 1994 Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 November 2017 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 17 February 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT Country Information Report Vietnam 21 June 2017) 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 raised by the applicant in this matter is whether he meets the refugee criteria or comes within Australia’s complementary protection obligations because of his Catholic religious beliefs.
Background
On 11 July 2018, prior to the matter being listed for hearing, the Tribunal wrote to the applicant requesting any additional evidence relevant to the application. The applicant’s migration agent [advised] that he did not have any updated submissions but is relying on submissions that were provided to the Department in 2016 and the Tribunal was provided with a written letter dated 16 February 2016 signed by the applicant’s representative (2016 submissions).
The 2016 submissions provided the following background information about the applicant’s migration history since he arrived in Australia.
The applicant first arrived in Australia [in] May 2013 as the holder of a [student] visa. He travelled from [one city] to [another] and engaged an agent to transfer his course but this was never done. [In] July 2013 the Department was advised by [a university] that the applicant had not commenced his course of study.
On 15 October 2015 an email was sent to the applicant requesting him to provide consent for electronic correspondence or provide his residential address. The applicant did not respond to the request. The Department issued a Notice of Intention to Consider Cancellation of his student visa. The notice was sent to his last known address.
His visa was cancelled on 8 December 2015 because he had not commenced his studies. He applied to this Tribunal, differently constituted, to review the Department’s decision to cancel his student visa. The Tribunal, differently constituted, found that it did not have jurisdiction because the review application was not lodged within the prescribed period.
[In] December 2015 the applicant was located by [State 1] Police and detained pursuant to s.189 of the Act. No charges were laid and he was transferred to [a detention centre].
On 18 January 2016 the applicant applied for a Bridging visa E on the basis that he was making arrangements to depart Australia. The Department refused the application. The applicant applied to the Tribunal, differently constituted, to review the Department’s decision to refuse to grant him a bridging visa.
On 2 February 2016 the Tribunal remitted the matter for reconsideration with the direction that he complies with a number of conditions which included the payment of $30,000 in a security bond. The applicant paid the security bond and was released from detention [in] February 2016.
The applicant did not subsequently depart Australia and [in] February 2016 and lodged an application for a protection visa which is subject of the current application.
Summary of substantive claims
The applicant provided the following brief evidence in his protection visa application (form 866C) in support of his claim for protection.
He was born in Nghe An Province and he is a Roman Catholic. He left Vietnam because it is a Communist country and there is widespread corruption within the government and the police force. He claims there is a lack of human rights and religious rights are violated. He does not want to live under such a harsh regime.
His family home was surrounded by the police and they threatened to imprison his family.
At question 91 he declared that he had not experienced any harm in Vietnam.
He fears he will be imprisoned if he returns to Vietnam because he is a Roman Catholic.
He claims the authorities would not protect him and he cannot relocate because the situation is the same all around the country and even worse in his hometown.
Prior to the hearing the Tribunal was provided with two documents written in the Vietnamese language. Only one of the documents has been translated into the English language. It purports to be a summons issued by the Nghe An Province Police, Vietnam [in] April 2013. The other document appears identical in form and is dated [February] 2016.
Tribunal hearing
The Tribunal questioned the applicant about his studies in Australia. The applicant said his parents paid for the studies and his visa was arranged through an agent ‘middle man’. He has not completed any studies and his aim was to come to Australia and seek freedom. He was supressed by the Vietnamese government and seeks democracy. He fears if he returns to Vietnam his freedom will be supressed, he will be jailed and he does not know what will happen to him.
The Tribunal invited the applicant to provide further evidence and expand on his claims. The applicant said that on [in] April 2012 he took part in a protest with about 30 other people because the police in Vietnam seized land that belonged to Con Cuon Church. The police started to beat the protestors. He was beaten unconscious. When he woke up he was at his family home which was surrounded by the police. The police hired gangsters who threw rocks at his home and he could not get out. He claims the police did not like him because he was fighting for freedom.
The Tribunal noted that he took part in one protest and ask the applicant why the police would be interested in him. The applicant said he was being targeted by the police because he was a leader and because he was Catholic. The Tribunal asked the applicant to explain his role. The applicant said he stood up for change and wanted the church to get its land back. The Tribunal asked the applicant how he became a leader. The applicant said he became a leader because he was Catholic and peopled followed him. He could not provide any further information.
The Tribunal noted that the alleged incident occurred in 2012 and asked the applicant why the authorities would be interested in him if he was to return to Vietnam in the future. The applicant said he did not know what would happen to him. He fears he will be put in jail and he would lose his right to freedom and democracy.
The Tribunal asked the applicant about his role in the protest. The applicant said he was trying to stand up and fight for human rights.
The Tribunal questioned the applicant about the summons dated [in] April 2013 which was provided to the Tribunal after his protection visa application was refused. The Tribunal told the applicant it was concerned it was not provided to the Department at the time he lodged his protection visa application. In response to the Tribunal’s concerns the applicant said he did not have access to the summons at the time he lodged his application.
The Tribunal referred the applicant to the second summons dated [February] 2016. The Tribunal told the applicant it was surprised that the authorities would issue a second summons directed at him in circumstances where he legally departed Vietnam in May 2013.
The Tribunal referred the applicant to his original claim form (866C) and noted that at question 91 he declared that he did not experience any harm in Vietnam. He also did not provide any evidence about being a leader, or mention that he took part in a protest in April 2012 regarding the Con Cuong Parish and that he was beaten unconscious by the police in Vietnam.
The applicant said that he provided the evidence to his migration agent. The Tribunal questioned the agent about the applicant’s claims at the hearing.
The agent referred the Tribunal to the 2016 submissions and the information detailed under the heading ‘Problems in Vietnam’. He claims the letter was provided to the Department in support of the application on 16 February 2016.
The Tribunal finds that there is a discrepancy between the 2016 submissions which were provided to the Tribunal and those located on the Department’s file.
The Tribunal was able to locate the original letter signed by [the agent] on the Department’s file[1] dated 16 February 2016. The letter is date stamped and was first received by the Department on 17 February 2016. The Tribunal notes that under the heading ‘Problems encountered in Vietnam’ it states:
[The applicant’s] family are Roman Catholic. The United Nations Human Rights Commission had found that the Communist regime in Vietnam is violating the religious freedom of its citizens- [The applicant’s] family home had previously been surrouned by government officials and Police who threatened his family with imprisonment. There is also wide spread corruption in the government at all levels in the whole country.
[1] DIBP file [file deleted] folios 5 to 7
The Tribunal notes that the copy of the 2016 submissions provided to the Tribunal are different in content and details the following information under the heading ‘Problems in Vietnam’:
[The applicant’s] family are Roman Catholic. The United Nations Human Rights Commission had found that the Communist regime in Vietnam is violating the religious freedom of its citizens- [The applicant’s] family home had previously been surrouned by government officials and Police who threatened his family with imprisonment. There is also wide spread corruption in the government at all levels in the whole country.
[The applicant] had previously participated in a Catholic group demonstrating for religious freedom which was beaten and displaced by Police. [The applicant] was then asked appear (sic) for questioning by the local authorities. He was forced to sign a statement stating that he was wrong to participate in the illegal demonstration and that he would not repeat the offence or be imprisoned. A copy of this signed declaration was never given to [the applicant] and is held by the local authorities.
At the hearing the applicant’s agent referred the Tribunal to a letter from his file dated 16 February 2016 which was identical to the 2016 submissions provided to the Tribunal.
The Tribunal notes that the letter on the agent’s file and the letter on the Department’s file are both signed originals dated 16 February 2016 but are different versions of the same letter.
The Tribunal told the agent that it was concerned about the discrepancies in the correspondence. The Tribunal invited the agent to provide an explanation of why the letter on his file is different from the letter on the Department’s file. The agent was unable to provide an explanation to the Tribunal.
The Tribunal notes that the applicant claims he told his agent that he took part in a protest in April 2012 regarding the Con Cuong Parish and that he was beaten unconscious by the police in Vietnam. The Tribunal notes that this evidence is not contained in the protection visa application. The Tribunal is concerned that the agent was unable to provide any explanation regarding the discrepancies in his correspondence dated 16 February 2016. The Tribunal is however prepared to accept that the agent may have sent the wrong letter to the Department and the letter on his file represents the client’s most current instructions at the time. To be clear, the Tribunal is not making adverse credibility findings against the applicant in relation to this discrepancy.
Assessment of claims
The next question for the Tribunal to determine is whether the applicant’s claims as put forward at the hearing are credible and if so, does the applicant have a well-founded fear of persecution in Vietnam.
In assessing the applicant’s claims the Tribunal has considered country information regarding religious freedom in Vietnam and the demographic of Catholics in the applicant’s home province. The Tribunal has also considered information regarding the Con Cuong Parish.
In assessing the claim the Tribunal has had regard to the following information prepared by DFAT regarding Catholics in Vietnam:
Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.[2]
Vinh Diocese
[2] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]
In 2011 the Holy See reported (of 2010) that there were 492,471 Catholics in Vinh diocese (8.0% of the total population of 6,155,000), 179 parishes, 161 priests, three male religious and 697 female religious.[3]
[3] Cheney D M 2013, ‘Diocese of Vinh’, 5 September, Catholic Hierarchy website < [accessed 26 November 2014] <CISNET Library CIS36DE0BB1661> citing source ‘ap2011’ - Annuario Pontificio 2011 (Vatican City: Libreria Editrice Vaticana) - see Catholic Hierarchy website page < . For 26 Catholic dioceses’ details see Cheney D M 2013, ‘Viêt Nam. Current Dioceses’, 21 April, Catholic Hierarchy website <
In a September 2013 statement, Vinh diocese’s (two) Bishops and Presbyterate (Council of Priests) claimed to represent ‘more than 526,000 Catholics who live and work in the three provinces namely Nghe An, Ha Tinh and Quang Binh’.[4]
[4] Nguyen Hong Phap Rev J & Nguyen Van Vinh Rev P (Translated by VietCatholic Network) 2013, ‘Statement of Priests of Vinh Diocese on recent human rights, religious issues, and brutal suppression at My Yen parish’, VietCatholic News website, 21 September < <CISNET BACIS CXC28129413689>.
In a December 2013 interview with the Bishop of Vinh the Catholic website AsiaNews.it reported that ‘[t]he Diocese of Vinh covers the provinces of Nghe An, Ha Tinh and Quang Binh and has about 529,000 members or 10 [sic for 8] per cent of the total population’.[5]
Con Cuong Parish
[5] AsiaNews.it 2013, ‘For Vinh Bishop, jail and campaigns of lies will not stop the Church's mission’, AsiaNews.it, 19 December < [accessed 27 November 2014] <CISNET BACIS CXC28129413692>. The numbers were repeated in: AsiaNews.it 2014, ‘Bishop of Vinh: Evangelisation primary mission of Vietnamese Church’, AsiaNews.it, 19 February < <CISNET BACIS CX1B9ECAB8093>.

On 15 July 2012 the report of a Vietnamese writer published on United Kingdom-based daily online news service Independent Catholic News stated:
In a letter dated 10 July, 2012, sent to all cardinals and bishops in Vietnam, the diocese of Vinh reported that: ‘Recently, Catholics in the diocese of Vinh who reside in the North West region of the Nghe An Province have been repeatedly persecuted for their faith. The attack on Sunday 1 July was the peak of a series of harassments against Catholics in the region. On that day, the local government mobilised large groups of police, army, militiamen, and thugs to disturb, and to physically attack priests and the faithful. They seized the chapel of Con Coung [sic], desecrated the Eucharist Host, and smashed a statue of the Virgin Mary.’
Asking for spiritual supports and solidarity from other dioceses in Vietnam, the diocese called for massive protests today to demand an end to the persecution that is ‘ongoing by the local government’, and the immediate halt to the ongoing propaganda and defamation campaign against Catholics in the state media.
Dioceses across Vietnam have responded to the appeal with special prayers.
Banners have been hung in front of all churches of the diocese of Vinh protesting at the government actions.[6]
[6] An Dang J B 2012, ‘Vietnam: mass protests after government crackdown on Catholic Church’, ICN Independent Catholic News website, 15 July < [accessed 10 December 2014] <CISNET BACIS CX0D38E8E19928>. Similarly reported in: An Dang J B ‘(with the collaboration of Br. Paul)’ 2012, ‘Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom’, AsiaNews.it, 16 July < <CISNET BACIS CX0D38E8E19941>.
On 15 July 2012 the report published on Independent Catholic News stated:
In spite of a massive police presence, and the cancellation of ferries, tens of thousands of Catholics in Vinh Diocese took to the streets today (15 July) [Sunday] to protest against local government attacks on the Con Cuong parish community.[7]
Applicant’s profile in Vietnam
[7] An Dang J B 2012, ‘Vietnam: mass protests after government crackdown on Catholic Church’, ICN Independent Catholic News website, 15 July < <CISNET BACIS CX0D38E8E19928>. Summarised as ‘In response to the attacks, Catholics gathered for a protest in the provincial capital of Vinh on July 15. Catholic news agencies said thousands of supporters turned out for the demonstration despite armored vehicles and riot police dispatched to contain the protest.’ Radio Free Asia Vietnamese Service [Translated by An Nguyen & Vandenbrink R] 2012, ‘Priests Protest Church Attacks’, Radio Free Asia website, 20 July < <CISNET BACIS CX0D38E8E19786>
The Tribunal has considered whether the applicant would face persecution in Vietnam because of his Catholic religion. The Tribunal accepts the applicant is a Catholic. The Tribunal accepts the applicant will attend church and continue to practise his religion if he were to return to Vietnam in the reasonably foreseeable future.
Information detailed above confirms that the protest activity was its peak on 1 July 2012 and that tens of thousands Catholics in Vin Diocese took part in the protest activities. The Tribunal has considered the country information detailed above and the applicant’s evidence and accepts that as a Catholic he may have taken part in protest activity regarding the Con Cuong church in April 2012.
The Tribunal does not however accept the applicant’s evidence that he is a ‘leader’ in his local Catholic community who has specifically come to the attention of the authorities in Vietnam. In making this finding the Tribunal has considered the applicant’s evidence at the hearing. When questioned about his role as a leader the applicant was initially unable to answer the question. After further questioning he was only able to say that he stood up and peopled followed him. The Tribunal found the applicant’s evidence vague and lacking in detail.
The Tribunal would have expected that if the applicant was a leader within his local parish community he would be in a confident position to expand on his claim and provide evidence of his involvement and interaction with the church and local community. He was unable to explain how he became a leader or provide details of his role.
The Tribunal also found it surprising that as a ‘leader’ the applicant claimed that he only took part in one demonstration. When asked to explain his role in the demonstration held [in] April 2015 the applicant was only able to say that he would stand up and fight for human rights.
The Tribunal also found a number of inconsistencies between the applicant’s evidence at the hearing and the claims made in the 2016 submissions which were provided to the Tribunal by the applicant’s agent. In particular the Tribunal notes the submission claim the applicant was asked to appear for questioning by the local authorities and was forced to sign a statement stating that he was wrong to participate in the illegal demonstrations and that he would not repeat the offence or he would be imprisoned. The Tribunal notes that the applicant did not give this evidence when questioned at the hearing. He stated that he did not know authorities had issued a summons in April 2013.
The Tribunal notes that the applicant was able to freely depart Vietnam on a Vietnamese passport which was issued [in] 2013. The Tribunal would have expected that if the applicant was a leader within his local Catholic church he would have been known to the authorities and experienced difficulties obtaining a passport and departing Vietnam. This did not happen and the applicant was able to freely depart Vietnam despite his claim that the authorities issued a summons for his arrest dated [April] 2013.
The Tribunal noted that country information indicates that some limits have been imposed by the Vietnamese authorities on freedom of movement for persons with a dissident profile. For example, advice provided by DFAT indicated that requirements for exit and entry visas for Vietnamese nationals were removed in March 2000, and that control procedures have since relied on passport issuance and screening against blacklists at the point of departure:
... Ministry of Public Security (Immigration) controls procedures for Vietnamese nationals exiting Vietnam. This is done through both passport issuance and screening at border exit points. To obtain a passport, a Vietnamese national must lodge Form TK1, with photo attached, and his/her ID and household registration documents at the local (ie, city or provincial) immigration department. Once he/she has obtained a passport, it can be used to exit the country. He/she will be screened against ‘black lists’ held at border points (in a manner similar to procedures used by other countries).[8]
[8] DIMIA Country Information Service 2004, Country Information Report No. not yet allocated/04 – Exit Visas for Vietnamese Nationals (sourced from DFAT advice of 13 September 2004), 14 September.
The Tribunal finds that the applicant was able to obtain a Vietnamese passport and legally depart Vietnam which would suggest he is not on a watch list and does not hold a profile with the authorities.
Against this background, and having regard to the Tribunal’s finding that the applicant is not leader, it seem highly implausible that the authorities would issue a second summons directed at the applicant [in] February 2016 in circumstances where the protest activity occurred over three and half years before the issue of the summons in circumstances where he had already voluntarily departed Vietnam.
The Tribunal has also closely inspected and compared both the original summonses. The Tribunal finds that they are in the same handwriting, same colour blue pens (one type of blue ink for the content of the documents and a different blue ink for the signatures) and contain the same signature which seems surprising given that they were issued over two and half years apart.
In assessing the weight the Tribunal gives to the summonses, the Tribunal has also had regard to DFAT advice that document fraud is common in Vietnam.[9] In conclusion, having considered the applicant’s evidence, his profile, the content of the documents and delay in their production, the Tribunal finds that the documents are not genuine.
[9] DFAT Country Information Report Vietnam 21 June 2017 [5.30]
As detailed above the Tribunal does not accept the applicant had come to the attention of the Vietnamese authorities prior to arriving in Australia. The Tribunal finds that the applicant does not have an anti-government profile with Vietnamese authorities because he is a leader in his local Catholic community and/or because he took part in a demonstration held in April 2012.
Finally, in assessing the applicant’s claim that he fears persecution in Vietnam, the Tribunal has also had regard to the delay in the applicant lodging the protection visa application. The Tribunal notes that the applicant arrived in Australia in May 2013; however, he did not apply for protection until February 2016. The applicant’s actions in not applying for protection earlier seem inconsistent with his evidence at the hearing that he travelled to Australia because he feared for his life and had no intention of undertaking any study in Australia. The Tribunal would have expected that the applicant would have applied for protection soon after he arrived in Australia if he was a leader in his local Catholic community who was beaten and targeted by the local authorities prior to his arrival in Australia. The Tribunal finds that it would have been reasonably open to the applicant to have made enquiries with the Department in person or online regarding his visa options if he held a genuine fear of returning to Vietnam.
The Tribunal has had regard to country information and accepts that there were a number of clashes between Catholic parishioners and the authorities related to the expropriation of land by the authorities from Catholic communities in the applicant’s province in 2012. As detailed above the Tribunal accepts that the applicant took part in one protest regarding the Con Cuong parish. The Tribunal does not accept the applicant came to the attention of the authorities and was beaten, interrogated, forced to sign a confession or summonsed. Information before the Tribunal confirms the protests were large in scale and attended by tens of thousands of protestors. The Tribunal does not accept that the applicant was a leader or specifically targeted by the authorities. The Tribunals finds that he was an ordinary protestor.
Having considered the applicant’s profile detailed above, the circumstances in which he was able to depart Vietnam and travel to Australia and the fact the protest activity occurred over six and half years ago, the Tribunal is not satisfied that the applicant is a person of interest to the Vietnamese authorities.
The Tribunal finds that the applicant is not a person who has come to the attention of the authorities because of his religious beliefs or protest activity.
The Tribunal has had regard to DFAT’s most recent country information report, which states that Catholics are able to practise freely at registered churches, and 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 Communist Party of Vietnam and its policies.[10]
[10] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]
The Tribunal also finds that current country information provides a more optimistic outlook for Catholics in Vietnam.[11] According to a report from the UN Special Rapporteur on freedom of religion or belief, the relationship between Vietnam and the Vatican has improved markedly in recent years.[12]
[11] 2017 Annual Report, US Commission on International Religious Freedom, April 2017, CISEDB50AD3969, p.116
[12] Report of the Special Rapporteur on freedom of religion or belief, ‘Heiner Bielefeldt – Addendum: Mission to Viet Nam (21 to 31 July 2014)’, UN Human Rights Council, 30 January 2015, p.13, CISEC96CF13238
Having regard to the applicant’s profile as an ordinary Catholic parishioner from Nghe An Province who does not have an adverse profile with the authorities the Tribunal finds the applicant is able to freely practise his Catholic religion in Vietnam without fear of persecution.
In conclusion, the Tribunal is not satisfied that the applicant would face serious harm if he were to return to Vietnam in the reasonably foreseeable future because of his Catholic religious beliefs. His fear of persecution because of his religion is not well-founded.
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).
Complementary Protection
The Tribunal has also considered the application of s.36(2)(aa) to the applicant's circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Vietnam, there is a real risk he will suffer significant harm.
As detailed above the Tribunal does not accept the applicant is leader in his local Catholic community or that he has come to the adverse attention of the authorities in Vietnam. The Tribunal does not accept he is a person of interest who has been beaten, summonsed or that he was forced to sign any confession. The Tribunal does not accept that since the applicant has come to Australia that his family in Vietnam has come to the adverse attention of the authorities. In conclusion the Tribunal has had regard to DFAT’s most recent country report and finds that the applicant as an ordinary Catholic is free to practice his religion in Vietnam.
The Tribunal is not satisfied 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 he will suffer significant harm. The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).
For the reasons given above, having considered the claims both separately and cumulatively the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 1285

11 January 2019

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