1801784 (Refugee)

[2024] AATA 2157

1801784 (Refugee) [2024] AATA 2157 (4 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801784

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Gregory Hanson

DATE:4 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2024 at 8:47am

CATCHWORDS
REFUGEE – protection visa – Vietnam – traffic accident with high ranking police officer’s son – altercation with undercover police officer – threats – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 116(1)(b), 424A(1), 499
Migration Regulations 1994 (Cth), 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 dependants.

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 5 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of the Socialist Republic of Viet Nam (Vietnam), applied for the visa on 20 February 2017. The delegate refused to grant the visa on the basis that they were not satisfied that there was a risk that the applicant would suffer serious harm or significant harm if he were to return to Vietnam, and therefore did not meet the refugee criteria in s 36(2)(a) of the Act or the complementary protection criteria in s 36(2)(aa).

3. On 23 January 2018, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

   Before the delegate

10. The information provided by the applicant to the delegate in support of his claims to engage Australia’s protection obligations was limited to that contained his protection visa application lodged with the Department on 20 February 2017. That protection visa application consisted of the protection visa application form and an accompanying undated statement.

11. In response to the question 89 in Part 866C of the protection visa form, which asked why he left Vietnam, the form records that his purpose was to study in Australia but that he also had been targeted by a member of the police in Vietnam, and referred to his attached statement in which he declared the following:

    a.In 2006, he was involved in a serious motorcycle accident and fell unconscious. His arm was broken and he was taken to hospital where he had an operation. When he was released from the hospital, he attended the police station to get his motorcycle and was told of the person who caused the accident was [an age]-year-old and was not yet legally to operate a motorcycle. He wanted to press charges and seek compensation from the other party. However, the policeman that was dealing with was [Officer A] of [named] police station accused him of violating of road rules and said the fault was his.

    b.He later found out that the person who was involved in the motorcycle accident with him was the son of a very senior government official, and that [Officer A] had been bribed to protect that senior official’s son.

    c.He (the applicant) was [age] years old at the time and being young and feeling that he had been unfairly treated, he appealed the matter to the Transport Administration which could result [Officer A] being disciplined and possibly losing his post. This appeal infuriated [Officer A] and he expressively threatened him and his family that his life could be taken at any time, and he would never progress in his life as long as he remained in Vietnam.

    d.He was beaten up on the street and is certain that this was arranged by [Officer A].

    e.[Officer A] used his power to threaten to imprison him.

    f.His Mum was extremely worried about his safety and sent him to study in [Country 1]. Upon his return from [Country 1], possibly because [Officer A] knew officials working at Tan Son Nhat airport in Ho Chi Minh City,

    g.[Officer A] had continuously asked people to attend his house to threaten him and his family.

    h.Not being able to bear the constant fear for his safety, his parents decided to sell their house to finance his study in Australia; hoping that he would be able to obtain qualification overseas and most importantly to be far away from [Officer A].

    i.Every time he returned to Vietnam during his school breaks in Australia, he was in constant fear of being monitored and bodily harmed as [Officer A] had threatened. [Officer A] once told him that if he (the applicant) was returning to Vietnam, he could use his power and connection to prevent him returning to Australia to study.

    j.During his return visits to Vietnam he had been protected by my parents and limited going out and stayed home.

    k.His parents had been arguing over the sale of their house to fund his study, and they finally divorced in 2011.

    l.His dad had expressly blamed me for the failure of his marriage.

    m.With the personal hatred and abusive of power from [Officer A], he is deeply concerned for his safety upon returning to Vietnam. With [Officer A]’s influential power and wide connection, it would be almost impossible and risky for him to continue studying or find employment in Vietnam.

    n.Additionally, his dad and his family are disappointed of his poor study results. They refuse to let him stay at their house if he returns to Vietnam. If he returns to Vietnam he will have to find a place to stay and will not have his family to shield him from the threat and possibly bodily harm.

12. The delegate refused the visa application without providing the applicant with an opportunity to attend a protection visa interview or otherwise inviting further information from the applicant in writing.

    Before the Tribunal

13. On 23 January 2018, the applicant provided to the Tribunal a copy of the delegate’s protection visa decision record dated 5 January 2018. That decision record included the following summary of the applicant’s previous travel and other immigration events relevant to him:

Date	Event details
January 2007 – June 2008	Study in [Country 1]
[February] 2009	Arrived in Australia on Visitor visa subclass TU-573
[April] 2009	Departed Australia
[April] 2009	Arrived in Australia on TU-573
[September] 2009	Departed Australia
[October] 2009	Arrived in Australia on TU-573
[June] 2010	Departed Australia
[June] 2010	Arrived in Australia on TU-573
[July] 2010	Departed Australia
[July] 2010	Arrived in Australia on TU-573
[November] 2010	Departed Australia
[January] 2011	Arrived in Australia on TU-573
[November] 2011	Departed Australia
[January] 2012	Arrived in Australia on TU-573
[July] 2012	Departed Australia
[July] 2012	Arrived in Australia on TU-573
[December] 2013	Departed Australia
[December] 2013	Arrived in Australia on TU-573
[January] 2015	Departed Australia
[February] 2015	Arrived in Australia on TU-573
[March] 2015	Departed Australia
[April] 2015	Arrived in Australia on TU-573
[November] 2015	Departed Australia
[November] 2015	Arrived in Australia on visa TU-573
[June] 2016	Student visa cancelled
[January] 2017	Applicant sought Ministerial intervention, refused
[February] 2017	Application lodged for Protection visa subclass XA-866, moved onto associated bridging visa WE-050

1. On 4 October 2023, the Tribunal sent email correspondence to the applicant inviting them to complete a ‘Pre-hearing information form’ seeking further information about, among things, their protection claims, and requesting they respond within 7 days. On 11 October 2023, the applicant provided to the Tribunal a completed copy of that form. In the section of the form seeking further information regarding his claims for protection the applicant wrote ‘N/A’.

2. On 22 January 2024, the Tribunal sent email correspondence to the applicant enclosing an invitation to appear before the Tribunal at a hearing on 7 February 2024, and a ‘Response to Hearing Invitation form’ for the applicant to complete and return. No response was received from the applicant.

3. On 7 February 2024, the applicant appeared before the Tribunal with the assistance of an interpreter in the Vietnamese and English languages, to give evidence and present arguments relating to the issues arising in relation to the decision under review. Also in attendance was his [wife] (date of birth [deleted]), and his [son] (date of birth [deleted]).

4. At commencement of the hearing the applicant advised the Tribunal that his email account had been hacked and he did not receive the hearing invitation form, and only knew of the hearing from the SMS reminder messages he had received from the Tribunal. The Tribunal asked the applicant if he requested the hearing be adjourned so that he had a further opportunity to prepare. The applicant responded that he did not wish to seek an adjournment but he was worried that he wouldn’t be able to remember some important dates as the events happened a long time ago. The Tribunal assured the applicant that it would be conscious of the passage of time and its effect on memory and take this into account when assessing his evidence. The applicant reiterated that he did not wish to seek an adjournment.

5. At the commencement of the hearing the applicant confirmed that that he prepared the contents of his protection visa application form himself without any assistance from another person, and that he had reviewed its contents again before he applied to the Tribunal for merits review of the delegate’s decision. The applicant gave evidence that there were no changes that he wanted to make to the content of that application and that he was sure that what he stated was 100% the truth, and that all the contents of his application was correct to the best of his understanding.

6. The applicant’s evidence in relation to his family and general background in Vietnam included as follows:

   a.The applicant was born in Ho Chi Minh City, Vietnam.

   b.Both of the applicant’s parents are, and have always been, citizens of Vietnam and no other country. The applicant is a citizen of Vietnam and no other country, and always has been.

   c.The applicant’s mother and only sibling (a brother) are currently residing in Australia. The applicant’s only remaining family members in Vietnam are his father, grandfather and aunts and uncles.

   d.The applicant’s mother worked [in] Vietnam before she migrated to Australia with the applicant’s brother. The applicant’s mother owned several investment properties in Vietnam that they used to finance his (the applicant’s) further studies outside of Vietnam.

   e.Before retiring prematurely during the COVID-19 pandemic the applicant knew his father to have only ever worked at [Workplace 1], and that he had held a [specified] role in recent years prior to his retirement.

   f.His parents separated after the applicant moved to Australia in 2009 to study. Prior to this he considered his family to be adequately wealthy, but after the separation his parents were unable to support him financially in Australia. Also, by then his mother had disposed of several her investment properties and this led to financial problems.

   g.The applicant married his wife[in] September 2017 in Australia. Their only child[was] born in Australia on [date]. The applicant’s wife is a Vietnamese citizen who was born in [named] Province.

7. The applicant’s evidence regarding his education history included as follows:

   a.He completed primary and secondary schooling in Vietnam in Ho Chi Minh City.

   b.Between April [year] and November 2006, he attended university in Ho Chi Minh City but ceased that study before he completed the course.

   c.Between January 2007 and June 2008, he lived in [Country 1] where he undertook a Bachelor [degree].

   d.In February 2009 he moved to Australia to study and between then and March 2017 he was enrolled in several different courses.

8. When the Tribunal asked the applicant at the hearing why he chose [Country 1] to pursue further study, the applicant stated that he wanted to learn about [subject]. When asked why he could not pursue that in Vietnam the applicant stated that at that time the [subject] level of education in Vietnam was not as advanced as other countries. The applicant added that it is different now in Vietnam and if he had to make the same choice now, he would not choose to leave Vietnam and pursue those further studies in his home country.

9. When the Tribunal asked the applicant why he chose to come to Australia in 2009 he stated that he wanted to come to Australia to study and acquire knowledge so that he could secure a good job. He stated that his parents wanted him to study in Australia and that is why he didn’t work as much when he was enrolled in full-time study in Australia. He added that at that time it was his intention to complete his studies in Australia and then depart Australia and secure a job in Vietnam or another country.

10. When the Tribunal asked the applicant if anything happened to before he came to Australia that caused him problems or his family problems, he responded no. When asked if he had ever been harmed in Vietnam or threatened with harm in Vietnam, the applicant gave evidence as follows:

    a.Sometime after he moved to Australia to study but before 2015, he travelled back to Vietnam and while there he was involved in a traffic accident while riding his motorcycle [in] Ho Chi Minh City. He collided with another motorcycle and he (the applicant) and the rider of the other motorcycle disagreed as to who was at fault. They physically fought and the applicant won that fight. The applicant then left the scene of the accident.

    b.He did not know at the time, but the person who he had the accident with was a police officer in plain clothes and that police officer subsequently tracked him down using his (the applicant’s) motorcycle registration number. He cannot remember the full name of that police officer but he believes one of his names was ‘[name]’ and that his rank in the police force was [deleted].

    c.The applicant’s family offered to pay compensation to the police officer and the parties negotiated on the amount. The police officer and his associates demanded an amount that the applicant and his family were unable to pay. However, that police officer did not wish for the matter to be taken to a court and instead preferred to keep negotiating. 

    d.The applicant did not seek assistance from or make a complaint to the Vietnamese authorities about the problems he and his family had with that police officer and his associates.

    e.The applicant never lodged a complaint or otherwise had contact with the to the Transport Administration or other traffic accident-related agency in relation to the accident he had with the police officer.

    f.Other than when the applicant won the physical fight with the police officer at the scene of the accident, neither he nor any of members of his family ever had other physical altercations with that police officer or people acting on his behalf. Neither the applicant nor his family were ever physically harmed by that police officer or people acting on his behalf.

    g.The harm perpetrated by this police officer and his associates that the applicant and his family experienced in the past was limited to the following:

    i.Using their family’s influence to make the applicant’s father retire early from his position at [Workplace 1];

    ii.Threatening they would do the same to the applicant if he ever came back to Vietnam;

    iii.Prohibiting the applicant’s father from travelling overseas;

    iv.Threatening physical/bodily harm to the applicant;

    v.Threatening the applicant they could fabricate evidence that is strong enough to arrest the applicant; and

    vi.Threatening to make the applicant and his family’s life uncomfortable such that they would need to move to live elsewhere.

11. When asked what the applicant’s fears may happen to him if he returns to Vietnam, the applicant stated that he does not know if that police officer is still tracking him as his father is now retired from his [position], and the applicant has not returned to Vietnam since 2015, but he knows that they used their force to harm his father and his father is now retired.

1. At the hearing the Tribunal put to the applicant its concerns regarding potential material inconsistencies between his oral evidence before the Tribunal and his claims in writing presented to the Department in his protection visa application. The Tribunal referred to some examples of evidence he provided in writing to the Department that may be considered inconsistent with that which he had provided orally to the Tribunal, including the following that he claimed in his protection visa application submitted to the Department:

   a.The traffic accident occurred in 2006 before he travelled to [Country 1], and later Australia.

   b.After the accident he attended a police station to collect his motorcycle where it was being held and while there he was made aware that the other party in the accident was [age] years old and not legally permitted to be riding a motorcycle.

   c.He wished to press charges against that [age] year old but there was resistance against this by the police as the [age] year old was the son of a powerful Captain in the police force.

   d.He lodged an appeal with the Transport Administration agency and this resulted in the police Captain getting in trouble, and following this that individual sought revenge against him (the applicant) and his family.

2. In response, the applicant stated that there had been a misunderstanding and the inconsistencies between the two accounts can be explained by there being two separate similar events that had both occurred and affected the applicant in the ways he claimed. The applicant added that he completed the protection visa application himself and he didn’t know how to do so, and how long it should be.

3. When the Tribunal asked whether he or his family experienced any harm as a consequence of the earlier accident with the [age]-year-old, the applicant responded there were no threats of harm on that occasion and the child’s mother offered some financial compensation to the applicant and there were no police involved. However, the applicant later stated that police were involved and that the police were seeking financial payments from both him and the boy’s family. When asked if the applicant had any fears of harm in Vietnam when he travelled to Australia in 2009 he stated “a little bit, not much”.

4. The Tribunal also put other concerns to the applicant, including the delay after he states he commenced fearing returning to Vietnam and before the applicant lodged his protection visa application. The applicant stated that it was only after his student visa was no longer valid that that he “feared returning to Vietnam for sure”, and if he had been staying in Vietnam the risk to him would be growing and growing.

5. At the applicant’s request, the Tribunal also took evidence from the applicant’s wife [at] the hearing. [The wife] gave evidence that she has not asked her husband much about what had happened in Vietnam to him but the applicant had mentioned to her that someone had threatened him and his family there, but that she didn’t ask more. When asked if her husband has any fears of returning to Vietnam she stated that he does, and that she worries something might happen to him if he returned. When asked what sorts of things she worries might happen to him, she stated she didn’t know. When the Tribunal asked the applicant if there were any questions he wished the Tribunal to ask his wife, the applicant stated that his future in Vietnam is uncertain and that he also fears what would happen to his family, including his wife and child.

6. On 8 February 2024, pursuant to s 424A(1) of the Act, the Tribunal wrote to the applicant to put information to him for his comment or response. That information is contained in a decision record accompanying an earlier decision by the Tribunal (differently constituted) on 22 December 2016 affirming a decision of a delegate to cancel the applicant’s Subclass 573 (Higher Education Sector) visa under s 116(1)(b) of the Act (2016 Tribunal decision), that the presently constituted Tribunal has before it. The information put to the applicant was as follows:

   a.At paragraphs 28 (page 5), 37 (page 7), 40 (page 7-8), 41 (page 8) and 46 (page 8-9) of the 2016 Tribunal decision, it is recorded that it was contended by the applicant or on their behalf that since 2013 he had intended to return to Vietnam after he completed his studies in Australia and open a restaurant business with his brother.

   b.The 2016 Tribunal decision did not record the applicant having raised any fears of returning to Vietnam, and further, the Tribunal found in that decision that no international obligations (such as protection obligations) were identified as being relevant to the applicant at that time.

7. On 22 February 2024, the Tribunal received the applicant’s response in writing as follows:

   a.He does not know what will happen to him if he goes back to Vietnam.

   b.When he has been staying in Australia, he has never broken the law and has been a good person for a long time, and from the first time he arrived.

   c.After some happenings he lost his balance but luckily he met his wife and got married with her [in] September 2017. Additionally, they have their first child together [who] born on [date].

   d.He has one wish that he can stay here for enough time to help his wife take care of their child in his early stages, and that he hopes that the Tribunal can understand and help him.

   Country information

8. DFAT advises that Vietnam’s population is about 100 million people, and that it has a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas.[1] The two largest cities are Ho Chi Minh City with 8.8 million people, and the capital Hanoi with 4.8 million people.[2] The Vietnamese language, based on the Hanoi dialect, is widely spoken throughout the country.[3]

   [1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information report – Vietnam, 11 January 2022 (2022 DFAT Report), at [2.4], available at: Ibid.

   [3] Ibid.

According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty.[4] In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups.[5] The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic, and this is reflected in a growing middle class and increasing urbanisation.[6]

[4] 2022 DFAT Report, at [2.5].

[5] Ibid.

[6] Ibid.

Vietnam is a one-party communist state with Communist Party of Vietnam (CPV) members holding all senior government and military positions.[7] The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021.[8] Ninety-two per cent of candidates in the National Assembly are members of the CPV. DFAT assesses that real political power is held in CPV structures rather than the National Assembly.[9]

[7] 2022 DFAT Report, at [2.28].

[8] 2022 DFAT Report, at [2.29].

[9] Ibid.

The Ministry of Public Security maintains all internal security and loyalty to CPV and the state is a requirement. In Vietnam, the police function at national, provincial, district and commune levels.[10] The Ministry of Public Security (MPS) oversees two main security forces: the People’s Security Force, focused on gathering intelligence for national security, and the People’s Police Force, responsible for social order, public safety, and manages more traditional police work.[11]

[10] 2022 DFAT Report, at [5.2].

[11]  2022 DFAT Report, at [5.1]; United States Department of State, ‘Country Reports on Human Rights Practices for 2022 - Vietnam, 20 March 2023 (2022 USDOS Report), p. 1, 20230322091151.

DFAT reports that police in Vietnam generally undergo comprehensive training and many attain degrees in policing or higher vocational education.[12] However, the United States Department of State (USDOS) reports that local city police often lack adequate funding and training, and although they will record a crime, investigations are often slow to complete and often only initiated for crimes deemed serious in nature.[13] USDOS also reports that corruption and excessive use of force persist, with instances of impunity among police officers and state officials.[14] USDOS and other sources indicate state security forces assault people publicly, and use corporal punishment whilst in custody, which has resulted in mistreatment and death.[15] The United Kingdom (UK) Home Office and USDOS report that despite the Supreme People’s Procuracy[16] having the authority to investigate security force abuse, there is no independent body to address citizen complaints against the police.[17]

[12] 2022 DFAT Report, at [5.2].

[13] 2022 USDOS Report, at p. 1.

[14] 2022 USDOS Report, at p. 1.

[15] 2022 USDOS Report, at p. 10; 'UNIVERSAL PERIODIC REVIEW (UPR) – 46th SESSION: VIETNAM', International Federation for Human Rights (FIDH), Vietnam Committee on Human Rights, 11 October 2023, p.6, 20231018084039.

[16] Source note: a government body that acts as a state prosecution service among other functions.

[17] United Kingdom Home Office, Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019, 9 September 2019, p.12, 20190917095808; 2022 USDOS Report, at p. 3-4.

DFAT reports that its in-country sources advised that police generally tend to react to crime rather than proactively investigating crime (that is, police often rely on catching people in the act of committing crime rather than investigating or using circumstantial evidence), while its other sources indicated that is not always the case, and that sometimes police take very strong and effective action to investigate crime, but this is not a consistent experience. [18]

[18] 2022 DFAT Report, at [5.3].

The UK Home Office and other sources report that corruption occurs at every level of the police and bribery is widespread.[19] A 2019 Transparency International survey on corruption found that more than 61 per cent of Vietnamese people had paid a bribe to police in the last 12 months.[20] These may involve low-level instances of corruption – colloquially termed ‘coffee money’ – which typically involve small payments at the side of the road, and which then circulate through police patronage networks.[21] DFAT distinguishes these from acts of high-level corruption, which are much less tolerated.[22]

[19] United Kingdom Home Office, Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019, 9 September 2019, p.58, 20190917095808; Overseas Security Advisory Council (OSAC), OSAC Country Security Report Vietnam, 12 July 2022, p. 8, 20220927150411.

[20] 2022 DFAT Report, at [2.29].

[21] 2022 DFAT Report, at [5.5].

[22] Ibid.

DFAT advises there have been reports of organised crime groups bribing local police to not respond in specific situations.[23] In 2018, the Ministry of Public Security established a telephone hotline for complaints about the police, however reports must be in Vietnamese, and cannot be confidential as it must include the denouncers name in full with address and phone number.[24] Further, the UK Home Office reports that police may share this information with criminal gangs.[25] The UK Home Office and other credible sources also report that criminals have received assistance from individuals embedded within the state, particularly the police,[26] and that many victims of crime refrain from cooperating with authorities in reporting offences.[27] Media sources report that despite an anti-corruption drive leading to over 11,700 economic crime prosecutions, petty corruption persists and is widely tolerated by state businesses and authorities, and although a 2018 anti-corruption law criminalised taking bribes by public officials and managers in state and non-state organisations, payments to police and other lower-level civil servants are often framed as ‘protection fees’.[28]

[23] 2022 DFAT Report, at [5.4].

[24] Viet Nam News, Anti-corruption hotline launched by Ministry of Public Security, 3 December 2018, 20220930143755; Cong An Nhan Dan, Ministry of Public Security changes anti-corruption hotline, 16 March 2022, 2022093014431.

[25] United Kingdom Home Office, Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019, 9 September 2019, p.25, 20190917095808.

[26] 'Global Organized Crime Index 2023 Report: Vietnam', Global Organized Crime Index, 26 September 2023, p. 3, 20231123110728; ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 09 September 2019, p.25, 20190917095808.

[27] Global Organized Crime Index, Global Organized Crime Index 2023 Report: Vietnam, , 26 September 2023, p. 3, 20231123110728.

[28] ‘In Vietnam, ‘feeding the police’ just a cost of doing business’, Al Jazeera, 23 December 2021,

Country information indicates that public administration corruption remains widespread, though at declining levels. Transparency International ranked Vietnam 83rd out of 180 countries in its Corruptions Perception Index 2023.[29] Public perceptions of corruption have generally declined in recent years, however it remains a significant concern for the general population.[30] Bribes for public sector employment persist in both poorer and wealthier provinces, and less than 75 percent of respondents in a 2022 United Nations Development Program (UNDP) assessment believe their government is genuinely committed to combating corruption.[31] Acknowledging the rising public discontent with corruption, CPV leaders and government officials have taken steps, resulting in an upswing in corruption-related arrests[32] and several senior officials have faced disciplinary action or imprisonment.[33] However, USDOS and other sources report that the enforcement of anti-corruption laws is still often selective and tied to political rivalries.[34]

[29] Transparency International, 2023 Corruption Perceptions Index – Vietnam, available at:

[30] 2022 DFAT Report, at [2.11]; Transparency International, 2023 Corruption Perceptions Index – Vietnam, available at: United Nations Development Program (UNDP), The Viet Nam Provincial Governance and Public Administration Performance Index: Measuring Citizens Experiences, 2022, 1 April 2022, p.xxi, 20230523122026.

[32] Freedom House, Freedom in the World 2023 - Vietnam, 13 March 2023, C2, 20230417082342.

[33] Bertelsmann Stiftung, BTI 2022 Country Report: Vietnam, 23 February 2022, p. 5, 20220224092534; Freedom House, Freedom in the World 2023 - Vietnam, 13 March 2023, C2, 20230417082342; 2022 USDOS Report, at p. 27.

[34] 2022 USDOS Report, at p. 27; Freedom House, Freedom in the World 2023 - Vietnam, 13 March 2023, C2, 20230417082342.

DFAT and USDOS report that ongoing corruption is evident still in various sectors, including land transfers, financial banking, natural resource mining, and public investment sectors.[35]

[35] 2022 USDOS Report, at p. 27; 2022 DFAT Report, at [2.11].

FINDINGS AND REASONS

The Tribunal has regard to all material before it, including that which was before the delegate, all subsequent material provided by the applicant to the Tribunal, and relevant country information.

Receiving country

The applicant's evidence in relation to his nationality, place of birth, education, family composition, ethnicity, places of residence, religion and language spoken, has been consistent throughout his primary and merits review protection visa processes. The applicant has also been consistent in his evidence that he is a national of Vietnam and of no other country, as are his parents. The applicant has demonstrated that he speaks Vietnamese, the official national language of Vietnam.[36]

[36] United States Government, Central Intelligence Agency (CIA), The World Factbook, Vietnam, available at: .

Further, the applicant provided to the Department a certified copy of a biometric page of a passport purporting to have been issued to him in his name on 13 February 2009 by the Vietnamese authorities. This document contains a photograph of a person bearing a true likeness to the applicant.

On the evidence before it, the Tribunal finds the applicant is a national of Vietnam and no other country, and that Vietnam is his only receiving country for ss 36(2)(a) and (aa) of the Act.

Credibility

The Tribunal does not accept the applicant’s evidence as credible as it relates to his claim to fear harm in Vietnam. The Tribunal has made this assessment upon reviewing the applicant’s evidence in its totality including the significant concerns with his evidence that the Tribunal has detailed below.

In making this finding the Tribunal has also had regard to relevant judicial authority on the issue of findings on credibility in this context[37], the Migration and Refugee Division’s Guidelines on the Assessment of Credibility[38], as well as the following general principles:

a.a person must generally be found to be a credible witness unless there is logically probative evidence to support a finding otherwise;

b.it is not reasonable to disbelieve a particular applicant solely due to minor inconsistencies in evidence; and

c.in considering any apparent inconsistencies, and aspects relating to the applicant’s account of past events, regard must be had to the common belief among academics and medical professionals regarding the variable nature of memory and the impact of trauma on memory processing, and that the memory is not a genuine reconstruction from autobiographical memory. 

[37] Including: Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [192] and Kirby J at [211]; Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423 per Hely J (these comments were not affected by the Full Court decision in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Kirby J at [7]; Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 per Foster J at [26].

[38] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility, July 2015, available at: >

The Tribunal has several serious concerns with the applicant’s evidence as it relates to the occurrence of past events that he claims form the basis for his fears of harm on return to Vietnam.

The Tribunal gives significant adverse weight to the above-referred material differences between the applicant’s written claims before the Department and his oral evidence to the Tribunal. Even after making generous allowances for the likely of the passage of time on the applicant’s memory and natural minor variations in accounts that often result when oral evidence is communicated through an interpreter, the Tribunal does not consider it reasonably plausible that a person in the circumstances claimed by the applicant would provide such materially differing accounts. The Tribunal has also had regard to the applicant’s explanation at the hearing that his claims before the Department referred to a separate but very similar incident that also occurred. The Tribunal does not consider this explanation convincing for reasons including because the subsequent account given by the applicant of the earlier event was also materially different from that detailed in writing before the Department. The Tribunal has also had regard to the applicant’s explanation that he prepared the application himself and didn’t know how to do so or how long he should make it. The applicant confirmed at the commencement of the hearing that he had previously reviewed the contents of his protection visa application, there were no changes he wished to make and that it was entirely correct and truthful. The Tribunal also does not consider it reasonably plausible that a person in the applicant’s claimed circumstances would have omitted reference to a later similar incident in his protection visa application for reasons including because, on the applicant’s evidence at the hearing, it was the only basis for harm initially articulated by the applicant at the hearing.

1. As above, the applicant provided the Tribunal with a copy of the delegate’s protection visa decision record with his review application, and included in that document is a summary of the applicant’s previous travel and other immigration events relevant to him (reproduced above). At the hearing the Tribunal put to the applicant its concerns that this information in the delegate’s decision indicated that he didn’t seek to apply for a protection in Australia until February 2017, and that he only did so after his student visa had been cancelled and his request to for Ministerial intervention had been unsuccessful. The Tribunal explained that this chronology may not be reasonably consistent with what might be expected from someone with a genuine fear of being harmed in their home country. The applicant responded that it was only after his student visa was no longer valid that that he “feared returning to Vietnam for sure”, and if he had been staying in Vietnam the risk to him would be growing and growing. The Tribunal does not consider this explanation reasonably plausible, including due to the passage of time between the alleged latter 2015 incident and the lodgment of his protection visa in 2017, and the fact that the student visa was a temporary visa.

2. The Tribunal has also allocated some adverse weight to the information put to the applicant following the hearing pursuant to s 424A(1) of the Act. The Tribunal has had regard to the applicant’s response but does not consider it a plausible explanation for why the applicant would not have raised claims to fear harm in Vietnam within that student cancellation process if his fears now were genuine, including in the context of whether the discretion should be exercised to cancel that student visa.

   Concluding findings

3. The Tribunal has found that the applicant’s evidence as it relates to his claimed fear of harm from a senior police officer and those acting on his behalf, is not credible. The applicant made no other claims to fear harm on return to Vietnam other than those considered above. The Tribunal finds on the material before it that the applicant would not be at risk of any form of harm on return to Vietnam, now or in the reasonably foreseeable future.

4. Following this, the Tribunal finds for s 36(2)(a) of the Act that there is not a real chance that the applicant would be persecuted in Vietnam now or in the reasonably foreseeable future.

5. The Tribunal further finds for s 36(2)(aa) of the Act that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that the applicant will suffer significant harm.

6. There is no suggestion that the applicant satisfies ss 36(2)(b) or (c) the basis of being a member of the same family unit of any other person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

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

   DECISION

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

   Gregory Hanson
   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.

   …

   
   

20231127095633