1800328 (Refugee)

[2021] AATA 5645

1800328 (Refugee) [2021] AATA 5645 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800328

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jessica Henderson

DATE:3 December 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 December 2021 at 1:30pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – father’s work for the South Vietnamese government – father's stint in re-education camp – applicant's friendship with protesters – fear of limited options for employment and residence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12; 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for XA-866 Permanent Protection visas on 30 May 2017. The delegate refused to grant the visas on the basis that the primary applicant’s claim was one of imputed political opinion, and there was no reasonable basis for believing that the primary applicant would be so imputed. The delegate found that the primary applicant did not face a real chance of persecution on return to Vietnam in relation to any imputed political opinion. The secondary applicant’s application was made on the basis of being a member of the same family unit as the primary applicant, and it therefore followed that it be rejected by the delegate.

   background

3. According to her passport, the primary applicant was born on [date] in Tra Vinh Province, Vietnam. She is a Vietnamese citizen.  The Tribunal notes that the primary applicant’s passport expired [in] 2021 (as did the secondary applicant’s). 

4. According to the primary applicant’s visa application filed on 30 May 2017 (visa application) she has one brother and one sister.  According to her curriculum vitae, the primary applicant has three brothers and three sisters. At the hearing the primary applicant confirmed that she in fact has three brothers and three sisters, and that they all still live in Vietnam, as do her parents.  For reasons that are set out below, the Tribunal does not draw any adverse conclusion from the misinformation provided in the primary applicant’s visa application.

5. According to her visa application, the primary applicant attended three schools; [named] Primary [years attended], [named] Secondary [years attended] and [named] High School [years attended].  She completed her high school education. The applicant confirmed these details of her education in her evidence to the Tribunal.

6. The applicants were married [in] March 2008 in Vietnam.

7. The primary applicant arrived in Australia [in] December 2011 as the secondary holder of a [temporary] visa.  The primary visa holder was her husband, who is the secondary applicant in the current appeal to the Tribunal.  They both worked as [farm workers] in Western Australia from their arrival in Australia.

8. According to the visa application, the primary applicant returned to Vietnam to visit her family [in] April 2015, returning to Australia [in] May 2015.  At the second hearing she told the Tribunal that she entered and departed Vietnam lawfully and she was not detained on entry or departure.

   History of representation for the applicants

9. It is worth setting out the history of the applicants’ representation, given that the applicants were ultimately unrepresented at the hearing of the matter, allegedly against their expectations.  The applicants did not seek an adjournment because of the non-attendance of their agent. 

10. The applicants completed a form 866 Application for a Protection Visa (PV application) on 26 May 2017 and it was received by the Department on 31 May 2017.  The PV application was completed by hand.  The email address specified for contact with the Department was [email protected] – that of John Galloway of John Galloway and Associates, who had assisted in the preparation of the PV application and who contemporaneously with the PV application sent to the Department a Form 956 advice that he was providing immigration assistance.

11. Mr Galloway was not present at the primary applicant’s interview with the Department.

12. This appeal to the Tribunal was lodged online on 4 January 2018, and it contained the appointment of John Galloway of John Galloway and Associates as the representative and authorised recipient for the applicants.

13. A further appeal to the Tribunal was lodged online on 8 January 2018 in respect of the same reviewable decision, with Mr Victor Lo being appointed as the representative and authorised recipient.

14. Mr Victor Lo subsequently filed a noticing that he was the representative for the applicants in this appeal.  The form by which he did so purported to have been signed by the primary applicant. It was accepted by the Tribunal and the contact details on this appeal were updated.  As far as the Tribunal is aware, Mr Galloway has had no involvement in this appeal after that date.

15. The history of correspondence between the Tribunal and Mr Lo with respect to the dual applications that remained on foot, notwithstanding the impossibility of the Tribunal having jurisdiction to hear them both, is detailed in the quotation below.

16. The matters were eventually listed for hearing together.  The notice of hearing was sent to Mr Lo on 7 October 2021, with a listing date of 28 October 2021.

17. On 20 October 2021 the Tribunal received a request for an adjournment.  The grounds for seeking a postponement were set out in the following terms:

    The Applicants’ were previously represented by John Galloway and Associates, who applied for the Protection Visas on the applicants’ behalf.

    For the avoidance of doubt, it was originally intended that the Applicants’ matter be transferred to AusGlobal Migration on account of our MARA registration having lapsed. However, this will no longer be necessary in light of recent legislative changes and our offices are taking carriage of this matter.

    We have made a formal request to JGA for a copy of the Protection Visa application and are awaiting a response.

    In the event that no response is forthcoming, we have been instructed to apply for a Freedom of Information (FOI) request with the Department of Home Affairs to obtain a copy of such records and documents.

18. The Tribunal responded on 20 October 2021, and the Tribunal’s reason for declining the request was set out in the following terms:

    Representation

    1. Case 1800328 was lodged on 4 January 2018 with John Galloway of John Galloway and Associates being appointed as the representative and authorised recipient.

    2. Case 1800628 was lodged on 8 January 2018 in respect of the same reviewable decision, with Mr Victor Lo being appointed as the representative and authorised recipient. Mr Lo has remained your representative of record from 8 January 2018 until the present date in respect of case 1800628.

    3. On 31 January 2018, the Tribunal contacted Mr Lo seeking a MR5 – appointment of representative form for Case 1800328 and a MR19 – withdrawal form for Case 1800628.

    4. On 19 July 2018, the Tribunal received an Appointment of Representative Form appointing Mr Victor Lo of VL Legal as the representative and authorised recipient for Case 1800328. Mr Lo has remained your representative of record from 19 July 2018 until the present date in respect of case 1800328.

    5. On 4 July 2019, the Tribunal wrote to you to advise that the Tribunal had received notification from MARA that Mr Lo’s registration as a Migration Agent had lapsed on 26 May 2019. Letters were sent in relation to applications 1800328 and 1800628.

    6. From 22 March 2021 the Migration Amendment (Regulation of Migration Agents) Act 2020 came into effect and lawyers with restricted and unrestricted practicing certificates as well as migration agents have been able to provide immigration assistance to Migration and Refugee Division applicants.

    7. In the period 26 May 2019 – 22 March 2021 Mr Lo’s representation of you was problematic, and the Tribunal accepts that you may have contemplated alternative representation during this period. However, you did not notify the Tribunal of any change in representation. Mr Lo has remained your representative of record.

    8. As Mr Lo is a lawyer, he has been able to actively represent you in that capacity from 22 March 2021.

    FOI request

    9. Mr Lo was both your representative of record for case 1800328 and a MARA registered Migration Agent for nearly a year, being the period 19 July 2018 to 26 May 2019. The Tribunal is of the view that there was a reasonable period of time available to him in which to familiarise himself with application 1800328.

    10. In any event, an FOI request has already been made in respect of cases 1800328 and 1800628. On 21 June 2021, the Tribunal received notification from the Department that an FOI request had been made for documents in the possession of Department of Home Affairs relating to both cases 1800328 and 1800628. Mr Lo was your representative of record and lawfully able to represent you in respect of both cases at that date.

    11. We note that the only document Mr Lo has indicated seeking from John Galloway and Associates is a copy of your Protection Visa Application. We have not been provided with a copy of what Mr Lo describes as a ‘formal request’ to Mr Galloway, or the date on which that was sent. However, there is no obvious reason why there would be a delay in Mr Galloway providing that document on receipt of Mr Lo’s request. (original emphasis)

19. Shortly thereafter, also on 20 October 2021, the Tribunal received a notice of change of representation in respect of case no 1800628 only, with the new agent being Mr Andrew Au of Evangel Legal, also a registered legal practitioner.  The notice was attached to an email requesting an adjournment due to the late change of agent.  That adjournment was also declined by the Tribunal.

20. The Tribunal then became aware that the signature on the form appointing Mr Au did not match the signature on the form appointing Mr Lo.  A review of the file showed that the applicant had consistently signed her name in the manner appearing on the appointment of Mr Au, and had not previously used the signature appearing on the appointment of Mr Lo.  The applicant’s passport was reviewed, and it was noted that the signature on her passport, predating her arrival in Australia, matched that on the appointment of Mr Au.

21. The Tribunal proceeded with the hearing on 28 October 2021 in respect of both appeals.  Mr Au appeared and provided a signed notice of change of representation in respect of this appeal.  Mr Au indicated that case 1800628 would be withdrawn immediately after the hearing, as indeed it was.

22. The primary applicant was asked about the reason for the double filing and was unable to provide an explanation.  She was asked if she knew Mr Victor Lo and said she did not.  However, on reflection she said that she had not been happy with Mr Galloway after he had represented her before the Department, and that a friend had recommended a new agent who she thought was Victor Lo. The Tribunal showed the applicant the form filed by Mr Lo and enquired as to whether her signature appeared on it.  She stated that it did not, and that she never signed her name in the manner which appeared on the form.

23. Regardless of what may have happened in respect of the commencement of the proceedings and the appointments or alleged appointments of Mr Galloway and Mr Lo, the Tribunal is satisfied that the appointments of Mr Au to both matters were valid, and that there has therefore been a valid withdrawal of case 1800628.

24. It became evident to the Tribunal during the initial hearing that the applicants were suffering symptoms of ill-health.  The productivity of the primary applicant’s coughs and sneezes convinced the Tribunal that the ill-health was genuine.

25. The Tribunal adjourned the proceedings for a period of 14 days, at the end of which time Mr Au was invited to update the Tribunal as to the health of his clients and any meaningful reason why a further adjournment should be granted.  The Tribunal cautioned Mr Au against seeking an adjournment without providing detailed information and any available supporting documents including, in the case of ill-health, a doctor’s note or a reasonable explanation for why one could not be obtained. 

26. On 29 October the proceedings were relisted for 15 November 2021.  On 2 November Mr Au requested an adjournment of the proceedings because he would be on annual leave for the period 9-21 November.  As Mr Au had not foreshadowed this difficulty during the hearing, and had not provided any details of when his annual leave had been booked, what attempts had been made to secure alternative representation, or why there would be any harm if he was unable to attend, given that he had only been on record for the current matter for a very brief period, the Tribunal declined to adjourn the hearing.

27. Mr Au subsequently filed a hearing certificate confirming that he would not be attending the hearing.  Notwithstanding that prior confirmation to the Tribunal, the applicants indicated that they were surprised by his absence at the hearing.  However, they did not seek to adjourn the proceedings on the basis that their representative had not appeared.

28. The Tribunal has real concerns about the conduct of this matter by the various agents for the applicants.  The applicants do not appear to the Tribunal to have the sophistication necessary to hold their representatives to proper account.  The consequence is that the Tribunal has been reluctant to use discrepancies in the history of the matter to test the credibility of the applicants or the consistency of their claims.  It is plausible that the applicants have not been aware of the content of the various documents filed by their representatives and/or have not been accurately advised on what information and evidence needs to be before the Department and Tribunal. 

29. In the circumstances, the Tribunal has not challenged the primary applicant’s credibility on any basis that might reasonably be attributable to the problems arising from her representation history. 

    claims and evidence

30. On her protection visa application, the primary applicant described her reason for leaving Vietnam in the following way:

    TO ACCOMPANY MY HUSBAND WHO HAD A [temporary] VISA [FOR EMPLOYMENT] IN AUSTRALIA.

31. In answer to the question ‘what do you think will happen if you return to [Vietnam]’ the primary applicant responded:

    PLEASE SEE THE ENCLOSED EVIDENCE. MY FATHER WAS A FORMER SOUTH VIETNAMESE GOVERNMENT WORKER WHO WAS CAPTURED AND MADE TO UNDERGO REEDUCATION. OUR FAMILY HAS BEEN SUBJECT TO DISCRIMINATION AND PERSECUTION AS A RESULT OF MY FATHERS (sic) FORMER ASSOCIATION.

32. In answer to the question ‘Did you experience harm in [Vietnam]’ the primary applicant ticked the ‘No’ box.  She subsequently ticked the ‘Yes’ box in answer to the question ‘Do you think you will be harmed or mistreated if you return to [Vietnam]’ but did not provide the requested further details.

33. The applicants provided the following documents in support of their application:

    a.Birth certificates;

    b.Marriage certificate;

    c.Identity cards;

    d.Passports;

    e.Curricula vitae;

    f.Passport photographs; and

    g.The following Vietnamese documents in relation to the primary applicant’s father, together with certified English translations:

    i.Household register;

    ii.Application for confirmation dated 29 March 2017; and

    iii.Certificate of completion of the course [named] Under the Development Program for Self-Sufficient Commune Development dated 8 April 1972.

34. The primary applicant’s oral evidence during her interview with the Department relevantly including the following:

    a.The primary applicant had lived in [Tra Cu District], Tra Vinh Province from her birth until she departed for Australia.

    b.She is of Kinh ethnicity and has no religion.  She has never been involved in any political parties or organisations and has never attended any protests or demonstrations.  She has not joined any organisations in Australia. She has not spoken out publicly against the current government of Vietnam.

    c.She did not encounter any problems when she left Vietnam, because when she left it was on a work visa “so there was no trouble”.

    d.Although the primary applicant says that her father has not suffered harm since his release, she says that he has not been afforded any priorities in his life and he had to work as a labourer for other people, such as looking after [farms].  Although her family has a small plot of land it’s not enough to feed a large family and her brothers also work on [farms].

    e.Her parents are old and no longer working.  Since she has been in Australia she sends them money to support them.

    f.Neither the applicant nor her family have been personally harmed in Vietnam, but there has been discrimination against them because her father was “under the Republic of Vietnam on the American side”.  She had not witnessed any acts of violence in Vietnam.

    g.The primary applicant said that she thought she would be personally targeted if she returned to Vietnam, but was unable to identify by whom.  She told the delegate:

    …when I come here to work and I start this application I asked my father to apply for some documentation and when he did that many people asked him why are you doing this? …That’s why I’m so concerned.

    h.The primary applicant described the discrimination against her in the following terms:

    When we went to school, it doesn’t matter how good a student, you can’t get a good job.  Your antecedent and background is scrutinised for 3 generations even just to be a butcher or something you would really like to do.

    i.She said further that if she returns to Vietnam it will be without assets.  If she needs paper to work or documents then she has to apply and the authorities will scrutinise her application very carefully and will cause a lot of trouble for her if she wants those documents.  She won’t be able to find a stable job and “won’t be able to survive let alone support her parents”.

    j.She confirmed that she only lodged a protection visa application because there was no other visa option left available.  Her reasons were economic; life in Vietnam is difficult and she will not be in any way to look after her parents financially because they are old and sick and cannot work to support themselves.  She said:

    My father he can go hungry sometimes. He doesn’t always have a meal to eat. Life here is much better. I’m being treated equally by everybody.  They don’t ask me for my background if I ask for a job.  They don’t ask me if my father has gone to jail.  I have managed to work and live here abiding by the law, and if I’m not staying here there is no way I can support my parents.

    k.The primary applicant and her husband are unable to have children.

35. In the Reviewable Decision, the delegate characterised the applicant’s claim as being based on imputed political opinion.  The delegate accepted that the applicant was of Kinh ethnicity and that her father may have been captured and sent to re-education camp as an employee of the former Republic of Vietnam in 1974. However, the delegate did not accept that the applicant has been imputed with an adverse political opinion due to her father’s history.

1. The delegate did not consider and therefore did not make a finding on whether the applicant has a well-founded fear of persecution for reason of being a member of a particular social group, being descendants of employees of the former Republic of Vietnam.

   Evidence before the Tribunal

2. No further evidence or written submissions were provided to the Tribunal, which had the same documents available as were before the Department.

3. During the second hearing before the Tribunal the primary applicant indicated that, in considering whether she had a well-founded fear of persecution for a refugee nexus reason, the Tribunal should take into account not only her father’s history, but also her telephone calls and text messages with two of her friends in Vietnam who had been involved in protests.

4. Both applicants gave oral evidence at the second hearing.  The primary applicant provided details of her background and family, her visit to Vietnam in 2015, and her correspondence with the two friends that she describes as protesters.  The primary applicant was requested by the Tribunal to provide copies of the text messages that she exchanged with people in Vietnam and she said that she was unable to do so because she had deleted them. 

5. The secondary applicant’s evidence went to the credibility of the primary applicant; he expressed the view that she can be trusted to tell the truth to the Tribunal.

   Criteria for a protection visa

6. 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.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). 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).

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

10. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. The latter is forward-looking.

11. 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.

12. ‘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.

13. 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.

14. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a husband.

    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.

    CONSIDERATION OF Claims and evidence

16. The issue in this case is whether, on accepted evidence, the primary applicant is entitled to protection in Australia as a refugee or alternatively on complementary protection grounds. 

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

    Nationality

18. The Tribunal is satisfied with the identity evidence provided by the primary applicant and finds that she is of Vietnamese nationality. 

19. In the absence of material evidence to the contrary, the Tribunal accepts the primary applicant does not have third country protection pursuant to s.36(3)-(5A) of the Act.

    Father’s involvement with the South Vietnamese government

20. The Department was provided with a copy and a translation of an ‘Application for Confirmation’ providing details of what is said to be the applicant’s father’s confirmation of re-education, which is before the Tribunal.  There is nothing before the Tribunal to contradict that evidence.  The Tribunal notes the consistency of the applicant’s evidence about her father’s work for the South Vietnamese government and his re-education throughout the application and appeal process.

21. Given the uncontradicted documentary evidence and the consistency of the applicant’s accounts, the Tribunal finds that the applicant’s father was employed with the South Vietnamese government and that he underwent re-education between 12 December 1974 and 2 September 1975.  The Tribunal also finds that the re-education was followed by a period of probation, which concluded on 1 September 1978.

22. The Tribunal accepts that the primary applicant is a first-generation descendant of a former employee of the South Vietnamese government, as are her siblings, all of whom are still resident in Vietnam.

    Did the primary applicant suffer serious harm and systemic and discriminatory conduct prior to leaving Vietnam in December 2011 or during her visit in 2015?

23. The applicant’s evidence on her visa application, during her interview with the Department, and to the Tribunal is that she has not suffered any harm, either prior to leaving Vietnam or during her return visit in 2015. However, she emphasised that she and her family were the victims of discrimination that had a serious economic impact on them.

24. The Tribunal accepts that there is historic discrimination against the children of former US allies in Vietnam.  The DFAT 2019 Country Information Report for Vietnam states that ‘[t]he structure of Vietnamese society strongly favours those with CPV [Communist Party of Vietnam] ties. After the Vietnam War, trusted CPV members and their families were awarded with prime positions, while Vietnamese previously allied to the US were punished and their children denied opportunities’: DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019 (p.25).

25. The Bertelsmann Stiftung Transformation Index (BTI) 2020 country report on Vietnam indicates that ‘children of former government officials of the Republic of Vietnam (South Vietnam) may face career and political barriers if employed in state institutions’: BTI 2020 Country Report - Vietnam', Bertelsmann Stiftung, 29 April 2020 (p 24).

26. The Country Information is consistent with the only specific instance of discrimination that the primary applicant was able to take the Tribunal to in respect of herself, namely that she had been prohibited from becoming a police officer because of her father’s connection with the South Vietnamese government.  The primary applicant’s evidence about this exclusion from her career of choice was vague, but the Tribunal accepts that it occurred when she finished her secondary schooling around [number] years ago, and that her memory has faded over time.  In the absence of any evidence to the contrary, the Tribunal finds that the primary applicant was prevented from becoming a police officer in or around [year].

27. The primary applicant also referred to difficulties that her brothers and sisters had in getting official documents. However, she acknowledged that she herself had not been prevented from obtaining any of her formal documents or permits, including the passport on which she has uneventfully travelled out of Vietnam on two occasions.

28. The primary applicant was specifically asked by the Tribunal about any harm that her siblings and other family members had experienced before and after the primary applicant’s departure from Vietnam.  The primary applicant noted two occasions on which her family had taken officials out to dinner and ‘given them something’ in order to obtain documents or land permits.  Otherwise, the ‘harm’ that they are said to have suffered appears to be discrimination affecting their employability; they are all said to be in labourer or farming roles.  There is no evidence before the Tribunal that her siblings have been below the subsistence level in those roles, and although the primary applicant indicated that her father had gone hungry on occasion, she was not specific about when this had occurred or the circumstances surrounding it.

29. The Tribunal accepts that the primary applicant may have experienced some discrimination in that she was not able to pursue her career of choice when she left school, possibly because of her father’s background.  However, the Tribunal finds that such discrimination did not rise to the level of persecution. The primary applicant’s capacity to subsist was never threatened.  She was able to earn a livelihood, albeit not in her first career choice. There is no evidence that services were withheld from her. 

    Text messages and telephone calls to friends in Vietnam who are protesters

30. The primary applicant acknowledges that her visit to Vietnam in 2015 was uneventful, in that she was not prevented from entering or leaving the country, and not persecuted during her visit.  During the second hearing the primary applicant told the Tribunal that the reason that she was not harmed during her visit to Vietnam in 2015 is because she had not yet been back in touch with her friends who are protesters against the Vietnamese government and had not yet communicated with them from Australia.

31. The primary applicant’s evidence at the hearing was that she had two friends in Vietnam that she had only reconnected with on her visit in 2015.  On her return to Australia, she had stayed in contact with them by text message and telephone conversation.  She had since lost touch with one of those two friends, but she still spoke to the other regularly.

32. The primary applicant told the Tribunal that she had been told by her friends that they had been involved in protests, that they had been arrested, and that their telephones had been taken by the authorities and examined.  They warned the primary applicant not to send further text messages because they might be read by the authorities on a future occasion.  She was unable to provide any meaningful detail about what protesting they had been involved in and what, if any, penalty they had been subjected to.

33. The primary applicant’s claim that she might be imputed with a political opinion because of her communications with friends who are protesters arose late in the course of the applicant’s application and appeal.  For the reasons already set out above, the Tribunal does not draw any adverse inference from the primary applicant’s failure to raise this aspect of her claim in her original PV application or subsequent communications with the Department and Tribunal.

34. However, the Tribunal found the primary applicant’s evidence about her communications with her friends to be vague, and evasive in response to specific questions from the Tribunal. The Tribunal asked the primary applicant what the text messages were that she thought the government would be interested in.  The primary applicant replied (as translated):

    Because in Vietnam we don’t have a freedom of speech. We cannot say whatever we want to say because they can arrest you and accuse you of some serious offence you didn’t commit.

35. The Tribunal asked the primary applicant “what was in the messages you were sending to them?”  The primary applicant replied (as translated):

    Actually I did express my frustration to the government and while we are talking about the protests and my friends involved. We cannot talk freely in Vietnam like that.

36. The Tribunal then asked the primary applicant to give “an example of something [she] remembers saying in a message”.  The Tribunal invited the primary applicant to look at her phone if she needed to.  The primary applicant replied (as translated):

    I did erase them when they warned me so sometimes later on I just called.  Even call, the phone, they have been bugged so we didn’t talk much. I delete the messages but I still got the letter from my friends. My friends did write a letter stating that the regime quite racist and mistreated people not equally, that’s why we involved in the protest and in the interview they said I was lying and that’s why I need the letters.

37. The Tribunal asked the primary applicant whether she had signed her text messages with her surname, and she said that she didn’t need to sign them. 

38. The Tribunal is prepared to accept that the primary applicant’s friends exist, that they have exchanged messages with the primary applicant, and that they have told the primary applicant that they have been involved in protests.  However, there is no evidence before the Tribunal that supports a finding that any messages sent and received by the primary applicant would give rise to a real chance or a real risk of serious or significant harm to her.

39. The Tribunal notes that, on her evidence, the primary applicant is not herself an activist. Her views of the Vietnamese authorities were expressed to the Tribunal in a relatively mild and inoffensive manner.  Her friends did not, on her evidence, caution her against ever returning to Vietnam but merely against sending unguarded text messages because their phones were apt to be searched by the police.   

40. In any event, the Tribunal put to the primary applicant that her Australian registered telephone number was unlikely to be connected with her by the Vietnamese government.  As she is not related to the recipients of her text messages or been recorded as sharing a household with them it is not clear why she would be recognised from her Australian registered telephone number. 

41. The Tribunal put the latter to the primary applicant during the second hearing and invited a response.  She suggested that her friend’s telephones would have her name saved in them, such that the text messages that she had sent would be identified as her.

42. The primary applicant’s view that sufficient detail about her would be recorded in her friends’ telephones to identify her to the Vietnamese government is not plausible, particularly in the context of the warning that the primary applicant says that she received from those friends.  The primary applicant’s name is not an uncommon one; even if it were recorded in full it would not unequivocally identify her. 

43. The Tribunal finds that there is not a real chance or real risk of the primary applicant being identified by the Vietnamese authorities as the author of any text messages that she has sent from Australia to friends in Vietnam.

44. In any event, there is no evidence to suggest that the friends themselves have been persecuted as a result of their involvement in protests. Although the primary applicant says that one of her friends was arrested after a protest in Saigon, she says that he was subsequently released whilst the government ‘gathered proof to put him in prison’.  She could not recall when the protest in Saigon had occurred but said that it was a few years ago.

45. The applicant herself, on her evidence, has never been involved in any political parties or organisations and has never attended any protests or demonstrations.  She has not joined any organisations in Australia. She has not spoken out publicly against the current government of Vietnam. 

46. Even if the primary applicant were identified as a correspondent with her two friends, the Tribunal finds that there is not a real chance that it would result in the primary applicant being persecuted for a political opinion or imputed political opinion, or otherwise causing her to face serious harm if she returned to Vietnam.

47. For the same reasons, the Tribunal finds that the text messages between the primary applicant and her Vietnamese friends do not give rise to a real risk that she will suffer significant harm if she is removed to Vietnam.

    Does the applicant hold a fear of being persecuted?

48. The Tribunal asked the primary applicant to explain what she thought would happen to her if she returned to Vietnam in the future.  She indicated that her main concern would be her limited options for employment and residence, arising because of the discrimination in Vietnam against the families of former South Vietnam employees.  However, her evidence is that she can survive on a role as a farming labourer in Vietnam. 

49. The Tribunal does not accept that the primary applicant is genuinely afraid of suffering serious harm on her return to Vietnam.  The Tribunal accepts that the primary applicant does not want to return to the economic and social conditions in Vietnam, and that the primary applicant is of the view that there is discriminatory conduct awaiting her in Vietnam. 

1. However, the Tribunal finds that the primary applicant does not fear serious harm to herself as a result of her connection with her father or otherwise.

   Is there a real chance the applicant will be persecuted?

2. The Tribunal has found that the primary applicant has not previously been persecuted, either prior to leaving Vietnam in 2011 or during her visit in 2015, and that there is no real chance or real risk that her correspondence with Vietnamese friends from Australia will give rise to her being treated differently in Vietnam in the future.

3. The primary applicant told the Tribunal at the second hearing that her request for a letter from her father might cause her to be treated differently in the future.  The primary applicant said that her need to have her father’s letter certified meant that it had come to the attention of a lot of people that she was trying to prove that she was mistreated by the Vietnamese government.

4. Even if the Tribunal accepted those propositions, the Tribunal notes that the content of the information provided to the primary applicant by her father amounts to such of his past treatment that is already on record with the Vietnamese government.  There is nothing added that would materially change the government’s understanding of the father’s history or his relationship with his daughter. 

5. The DFAT Country Information is to the effect that individuals will not face charges on return to Vietnam because they made a protection visa application.  In the context of that information, it is not clear why the mere knowledge on the part of the Vietnamese government that the primary applicant sought information from her father to make a protection visa application in Australia would change the Vietnamese government’s treatment of the primary applicant on her return to Vietnam.

6. The primary applicant told the Tribunal that her father had not wanted to write a letter for her because he doesn’t want her to be mistreated like he has been, and he is concerned that if the primary applicant draws attention to herself then the discrimination will last another three generations. That view does not assist the primary applicant.  The Tribunal has accepted that both she and her family has suffered some discrimination, but not that it rises to the level of persecution. There is no evidence to suggest that the father’s letter would result in a materially elevated level of discrimination, such as might put the primary applicant at serious or significant risk of harm.

7. The Country Information for Vietnam reports the following:

   The top ten occupations, which employ two-thirds of the labour force, are very low skilled, including agricultural, forestry and fishery labourers. Around three-quarters of jobs in Vietnam are in family farming (39 per cent), household enterprises (20 per cent), or employment without a contract (17 per cent). These occupations are characterised by low pay and limited worker protections. Ethnic minorities, women, and unskilled workers make up the majority of workers in these jobs.

8. In light of the Country Information, the effect of the primary applicant’s evidence is that the work which employs two-thirds of the labour force in Vietnam is available to her, notwithstanding her father’s historic connection with the South Vietnamese government.  Her evidence was that she expected to return to similar work in Vietnam if she returned there.

9. The Tribunal does not accept, without more, that employment which is available to two-thirds of the labour force would result in economic hardship of the kind contemplated by s 5J(5). There is no evidence before the Tribunal to suggest that the capacity of the primary applicant’s family to subsist is threatened by their engagement in agricultural labouring roles, and no basis for the Tribunal to conclude that the primary applicant’s opportunities would be less than those available to her siblings and parents. The primary applicant’s siblings are surviving on the income of farming labourers with multiple children.  On the same wages, but without children, the primary applicant might reasonably be expected to live above the mere subsistence level.

10. The Tribunal put to the primary applicant at the hearing that discriminatory conduct by the government of her country of origin did not, of itself, comprise serious or significant harm to her and invited the applicant’s further comment as to why she said that the discrimination amounted to serious or significant harm.

11. The primary applicant reiterated that, for descendants of former South Vietnamese government employees, official documents could only be obtained by bribery.  However, on the Tribunal’s specific enquiry, the applicant repeated her evidence that she had not paid a bribe for her passport, nor a bribe to leave the country on either of her departures for Australia.

12. On the basis of the available Country Information, the Tribunal accepts that corruption is still an issue in Vietnam.  However, it does not appear to have affected the primary visa applicant directly so far, and there is nothing on the evidence to suggest that it will pose a significant barrier to the primary applicant in the future, such as to comprise serious or significant harm. 

13. The Tribunal finds that there is not a real chance that the primary applicant will be unable to access necessary official documents if she returns to Vietnam.  The Tribunal further finds that it is not the case that the primary applicant will only be able to access necessary official documents by payment of bribes that put her at risk of significant economic hardship or unlawful conduct.

14. The Tribunal finds that there is not a real chance that the primary applicant will come to serious harm if she returns to Vietnam. For the same reasons, the Tribunal finds that there is not a real risk that the primary applicant will suffer significant harm if she is removed to Vietnam.

    Conclusions

15. After considering the primary applicant’s claims, both individually and together, the Tribunal finds that there is not a real chance that the primary applicant will face serious harm in Vietnam.  She therefore does not meet the refugee criterion in s.36(2)(a).

100.   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 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 she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her for the reasons specified in paragraphs (a – e) of the definition of ‘torture’ in s.5(1) of the Act.  The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional inflection of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1).  Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.  The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. 

101.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Secondary applicant

102.   As the Tribunal is affirming the decision in respect of the primary applicant, the secondary applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.

Conclusions

103.   For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations.

decision

104.   The Tribunal affirms the decision not to grant the applicants protection visas.

Jessica Henderson
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.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…